[1] WAGE APPEALS BOARD
UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, D. C.
In the Matter of:
P.B.M.C., INC., Prime Contractor
GREAT WESTERN DRYWALL,
Subcontractor, WAB Case No. 87-57
HAL MOORE,
President of Subcontractor
BEFORE: Charles E. Shearer, Jr., Chairman
Ruth E. Peters, Member
Stuart Rothman, Senior Member
DATED: February 8, 1991
DECISION OF THE WAGE APPEALS BOARD
This case is before the Wage Appeals Board on the petition of
the Administrator of the Wage and Hour Division and the cross-
petition of Great Western Drywall, subcontractor ("Great
Western"), and Hal Moore, president of the subcontractor, seeking
review of the decision and order of the Administrative Law Judge
("ALJ"), dated November 16, 1987. The Administrator requests
review of the ALJ's conclusion that the Administrator failed to
carry her burden of proof to show that employees of Great Western
had been underpaid. Great Western and Moore seek review of the
Administrator's conclusion that their debarment was warranted
pursuant to 29 C.F.R. 5.12(a)(1). For the reasons stated below,
the Board denies the cross-petition for review of Great Western and
Moore, grants the Administrator's petition for review, and remands
this matter to the ALJ for further proceedings consistent with this
decision. [1][2]
I. BACKGROUND
P.B.M.C., Inc. ("P.B.M.C."), the prime contractor, entered
into an agreement to construct about 500 apartment units -- a
project known as the Mariner's Cove Project -- in San Diego,
California (Administrative Law Judge's Decision ("ALJD") at 2).
The project was subject to the labor standards requirements of the
Davis-Bacon Act as a condition for obtaining mortgage insurance
from the Department of Housing and Urban Development ("HUD"),
under the National Housing Act, as amended (12 U.S.C. [sec] 1715c),
and the United States Housing Act of 1937, as amended (42 U.S.C.
[sec] 1437j). Great Western subcontracted with P.B.M.C. to perform
the drywall work on the Mariner's Cove Project. Under the contract
and subcontract, drywall installers (or "hangers") were to be
paid $22.83 per hour (including fringe benefits), and drywall
finishers (or "tapers") were to be paid $18.79 per hour (ALJD at
2).
Great Western paid the workers on the Mariner's Cove Project
on a piece rate basis (ALJD at 3). The base rate paid was $.06 per
square foot for «-inch 4' X 12' gypsum boards on the interior walls
of apartment units, with rates adjusted for other board sizes and
other aspects of the drywall installation and finishing operation
(Id. at 3).
Great Western did not keep records of the time actually worked
by employees on the Mariner's Cove Project (Tr. 929, 1071). When
the employees were paid, they were presented time cards (Tr. 1016-
1017). The entries on the time cards accurately reflected the
amount of gross pay the employees received; the gross pay amounts
listed on the time cards reflected the amount of pay due as
computed by the piece rate. However, the time card entries of the
hours worked by the employees were not accurate; instead, these
entries reflected the gross pay due (as computed by the piece rate)
divided by the applicable Davis-Bacon wage rate (ALJD at 13). The
time card entries of the hours worked by the employees were also
reported on Great Western's certified payroll (Government Exhibit
("Gov't Exh.") 38).
HUD, after receiving information toward the end of the drywall
operation that indicated that Great Western may be underpaying its
employees, undertook an investigation (Tr. 624-625). The matter
was referred to the Department of Labor; on February 23, 1986, the
Wage and Hour Division issued an order of reference, pursuant to 29
C.F.R. 6.30, for a hearing before an ALJ in this case.
In his November 16, 1987 decision and order, the ALJ stated
that there were "three fundamental issues to be decided: (1) Did
Great Western pay less than the prevailing wages? (2) If so, how
much was each employee underpaid? and (3) Did Great Western
violate the record-keeping provisions of the Acts, regulations or
contract?" (ALJD at 2). The ALJ found that as to the first two
issues, the evidence introduced by the Administrator was not
reliable and [2][3] probative, and that the Administrator had
failed to meet the burden of proof (Id. at 2). As to the third
issue, the ALJ found that the record keeping violations were
serious and warranted debarment of Great Western and Moore (Id. at
2).
The ALJ stated that at the beginning of the project, Great
Western had experienced dry wall hangers George Apple and Cal Skeen
hang dry wall, recorded the time spent by Apple and Skeen, and then
set the piece rate so that everyone could earn the prevailing wage
or better. Great Western attempted to take account of slower
workers, the ALJ stated, by setting the piece rate so high that
fast workers like Skeen and Apple would make 25% - 50% over the
prevailing wage. (ALJD at 3).
The ALJ stated that the HUD investigation was flawed because
the investigator assumed that drywall hangers work 40 hours per
week, and that payment at a piece rate is a per se violation of
Davis-Bacon requirements. Had the investigator "assumed a shorter
work week," the ALJ stated, "he would not have been so shocked at
the amounts paid. Had he not assumed that piece rate is a per se
violation of the Acts, he might have been less suspicious of
defendants." The ALJ also stated that the HUD investigator
apparently ignored the statements of employees favorable to Great
Western, such as George Apple. (ALJD at 4).
The ALJ noted that HUD sent questionnaires to 114 employees of
Great Western, and about 30 completed questionnaires were returned.
The ALJ "infer[red] that a large percentage of the persons who
declined to return the questionnaires were not interested in making
a wage claim." The ALJ added that he "believe[d] that those who
did return the questionnaires hoped to get more money by doing
so." (ALJD at 5). The ALJ stated that "the questionnaires as a
group are suspect" (Id. at 5). The ALJ also faulted HUD for
conducting group interviews of employees who filled out the
questionnaires, and for gathering unsworn interview statements (Id.
at 6). Most of the questionnaires used as the basis for computing
back wages, the ALJ stated, were completed by employees who were
not interviewed (Id. at 7). The ALJ stated that the computations
based on the questionnaires were "totally unreliable" (Id. at 6).
The ALJ also stated that the testimony of employees at the
hearing "does not put the investigation or the results thereof in
a better light" (ALJD at 7). The credibility of some witnesses,
the ALJ stated, was impaired by several of them testifying to
working on Sundays, when more credible evidence showed that Sunday
work was illegal and that the site was fenced off and locked on
Sundays. The ALJ also stated that he did not believe employee
testimony regarding working on Saturdays. (Id. at 7).
The ALJ noted that after eight employees had testified, and
before HUD investigator Jose Alberto Munoz had testified and the
defendants had presented [3][4] their case, he precluded the
Department ofLabor from producing further employee witnesses (ALJD
at 11). The testimony of Munoz and the defendants' witnesses
convinced the ALJ, he stated, that the evidence produced by the
employee witnesses and the questionnaires of the employee claimants
did not constitute reliable and probative evidence (Id. at 11-12).
The ALJ stated that according to court precedent a pattern or
practice of violations can be established by representative
testimony. The ALJ added that he believed that "the corollary is
also true; a failure of proof can be inferred from the insufficient
testimony of witnesses who are representative of non-testifying
employees." (Id. at 12).
The ALJ stated that the Department of Labor had not proved
that any of the employees had performed work for which he was
improperly compensated, that the evidence did not show the amount
and extent of the work performed, and that the evidence could not
sustain a reasonable inference of the amount and extent of the work
performed. Therefore, he stated, the defendants had no burden to
rebut the approximations produced by the Department. (ALJD at 12).
On the debarment issue, the ALJ stated that even though he
found that defendants had made a good faith effort to pay
prevailing wages, the record keeping violations in this case were
serious (ALJD at 13). The ALJ stated that he had no doubt that
defendants' managing employees knew that the recorded hours were
inaccurate (Id. at 13). Noting that under Wage Appeals Board
precedent an employer's falsification of payroll records to
simulate compliance with prevailing wage requirements is an
aggravated and willful violation, the ALJ ordered that Great
Western and Hal Moore be placed on the ineligible list pursuant to
29 C.F.R. 5.12 (Id. at 12-13).
II. DISCUSSION
A. Underpayment of Great Western's employees
The Board's analysis of this case is grounded on the familiar
principles enunciated in Anderson v. Mt. Clemens Pottery Co., 328
U.S. 680 (1946). Under these principles, an employee who seeks to
recover unpaid wages "has the burden of proving that he performed
work for which he was not properly compensated." 328 U.S. at 687.
However, this burden is not intended to be "an impossible
hurdle." Id. Indeed, "where the employer's records are
inaccurate or inadequate and the employee cannot offer convincing
substitutes, . . . the solution is not to penalize the employee by
denying him any recovery on the ground that he is unable to prove
the precise extent of uncompensated work." Id. In such
circumstances, an employee meets 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."
Id. [4][5]
The employer then has the burden to demonstrate the precise
number of hours worked or to present evidence sufficient to negate
"the reasonableness of the inference to be drawn from the
employee's evidence." 328 U.S. at 688. In the absence of such a
showing, the court "may then award damages to the employee, even
though the result be only approximate." Id.
Thus, as the Ninth Circuit recognized in Brock v. Seto, 790
F.2d 1446, 1448 (1986), "Mt. Clemens Pottery leaves no doubt that
an award of back wages will not be barred for imprecision where it
arises from the employer's failure to keep records. . . ."
Furthermore, Mt. Clemens Pottery provides specific guidance on the
responsibilities of the trier of fact: "Unless the employer can
provide accurate estimates [of hours worked], it is the duty of the
trier of facts to draw whatever reasonable inferences can be drawn
from the employees' evidence. . . ." 328 U.S. at 693. Upon
examination of the record in this case, the Board concludes that
the ALJ has not carried out the duty of the trier of fact to
approximate an award of back wages based on reasonable inferences
drawn from the employees' testimony. Accordingly, the Board
remands this matter to the ALJ for further proceedings.
The central premise of the ALJ's decision is that the
employees' testimonial evidence, and the employees' questionnaires
and interview statements, do not provide a reliable basis for
determining the amount and extent of work performed. The Board, as
an appellate body, is reluctant to set aside the factual findings
or credibility resolutions of an ALJ absent clear error. Thus, to
the limited extent that the ALJ's decision suggests that his
examination of the record indicates that the employees' estimates
of the number of hours they worked on the Mariner's Cove Project
may be somewhat overstated, the Board finds no basis to quarrel
with the ALJ's determinations.
This is not to say, however, that Board will not take
appropriate steps where clear error on a factual matter is evident,
nor that the Board demands that employees who claim they have been
improperly compensated must be able to reconstitute with precision
the records of hours worked which their employer -- in violation of
law, regulation and contract -- failed to keep. Such an approach
would be inconsistent with the principles set forth in Mt. Clemens
Pottery. Furthermore, the Board cannot accept the ALJ's conclusion
in this case that the Department of Labor failed to meet its burden
of showing that employees performed work for which they were
improperly compensated, or of producing evidence that could sustain
a reasonable inference of the amount and extent of the work
performed.
In evaluating the employees' testimony, the ALJ erred by
failing to discuss, or even to acknowledge, the evidence provided
by employees on the amount of piecework they could produce in a
given time period. Thus, for example, David Bradish estimated that
he could hang 30 to 35 interior drywall [5][6] sheets in an 8-hour
day (Tr. 179), and William Faith estimated that at the time of the
Mariner's Cove Project he could hang 28 to 35 sheets in an average
8-hour day (Tr. 219). Ottie Buchanan testified that for interior
work he could hang about 40 sheets a day (Tr. 257); he also
testified that in his experience there could be a variance of about
10 to 20 sheets among workers, and that the fastest workers doing
interior drywall work could consistently hang 35 to 40 sheets a day
(Tr. 267, 270-271). Warren Ritchey also testified about interior
drywall work, estimating that he could hang 40 to 45 sheets a day
(Tr. 486). Raymond Shackelford, Director of Labor Relations for
HUD in Los Angeles, testified that during the investigatory
interviews employees stated that they could hang about 35 to 40
sheets a day (Tr. 114).
We agree with the Solicitor (Administrator's Petition, at p.
15) that the employees' evidence demonstrates that the piece rate
established by Great Western did not yield the prevailing wage
rate, and that this evidence provides an appropriate basis for
inferring the extent of the underpayment. For example, at the base
rate of $.06 per square foot for installing 4' X 12' sheets of
interior drywall, an employee who installed 40 sheets in an 8-hour
day would earn about $14.40 per hour -- far short of the prevailing
wage rate of $22.83 for drywall installers (see Appendix A).
Indeed, an employee installing interior drywall at the $.06 per
square foot base rate would need to hang in excess of 63 sheets per
8-hour day in order to yield the prevailing wage rate (see Appendix
A; Tr. 494).
The ALJ also erred in his evaluation of the testimony of Great
Western witnesses regarding the purported "time study" conducted
by the firm to determine whether the piece rate would yield the
prevailing wage rate. The ALJ's characterization of the "time
study" as a "good faith effort" by Great Western to pay the
prevailing wage rate must be rejected for it cannot be reconciled,
in the Board's view, with the ALJ's finding that the firm's
"managing employees knew that the recorded hours [on the time
cards and certified payroll records] were inaccurate" (ALJD at
13). The efforts of Great Western management to present the time
cards to the employees with a request to "verify" the fictitious
time records as accurate also detract from any notion that the firm
was engaged in a good faith effort to meet the prevailing wage
requirements (Tr. 1016-1017). In addition, the failure of Great
Western to produce any records of the "time study" at the hearing
is a further basis for determining that the ALJ's reliance on the
time study is flawed. Inferences, if any, to be drawn regarding
this matter must be drawn against the employer who has failed to
produce records.
Furthermore, in evaluating the testimony of Great Western
witnesses on the time study issue (principally Charles Duggan,
production manager for Great Western during the Mariner's Cove
Project), the ALJ failed to consider or acknowledge the testimony
of Robert Mayland, Duggan's boss at Great Western (Tr. 1066).
Mayland testified that in preparing the project bid for Great
Western, [6][7] he assumed on the basis of previous experience that
drywallers would earn $18 to $20 at a piece rate of $.06 per foot,
and he bid the project on the basis of an $.08 per foot rate to
cover the prevailing wage requirement (Tr. 56).
The ALJ also failed to critically examine the testimony of the
participants in the "time study" -- George Apple and Cal Skeen --
and to compare their testimony with that of the employee claimants
on the issue of the employees' piecework production rate. For
example, although George Apple eventually testified that he could
earn about $30 to $35 per hour at the Great Western piece rate, he
initially testified that he could hang "the most about 50 sheets"
of 4' X 12' sheets of interior drywall in an 8-hour day, and
continued to maintain that the average drywall worker could hang
about 40 to 50 sheets a day. /FN1/ At the $.06 base rate, a worker
hanging 40 to 50 sheets of interior drywall in an 8-hour day would
earn approximately $14.40 to $18.00 per hour (see Appendix A) --
far less than the prevailing wage rate of $22.83 for drywall
installation. Thus, George Apple's testimony provides no rebuttal
for the testimony of the employee claimants on the issue of the
drywall workers' piecework production rate (see page 6,
above). /FN2/
Skeen likewise testified that his own rate of production was
high and yielded more than the prevailing wage -- Skeen testified
that he could hang 10 to [7]
/FN1/ Apple testified (Tr. 876) that he personally could hang "the
most about 50 sheets a day" of 4' X 12' interior sheets in an 8-
hour day. The testimony continued (Tr. 876-877):
Q. So, just to be clear, you could hang about 50 four by 12
sheets a day on the interior walls?
A. Oh, yeah.
Q. That's the pace you could work at? And --
A. You should be able -- you know, anybody should be able to
hang that.
Q. About 40 to 50?
A. Yes.
Q. And you determined that's what an average journeyman
drywall hanger should be able to do?
A. Oh, yeah.
Q. And at 6 cents a square foot, that should come out to way
more than the prevailing wage, is that what you determined? A.
Yeah, they should come out to prevailing wage, yeah.
Q. Does it come out to something like $30.00, $35.00 an hour?
A. No, I -- I can hang a lot more than that, but -- you know
-
- .
Q. The normal man could only hang 40 to 50?
A. Yeah. [END FN1]
/FN2/ The ALJ stated that the HUD investigator apparently ignored
the statements of employees favorable to Great Western, such as
George Apple. However, as noted by the Solicitor (Administrator's
Petition at p. 13), investigator Munoz did not begin his
investigation of Great Western until December 21, 1983, at a time
when Apple was no longer working on the Mariner's Cove Project.
Thus, although Apple testified that he talked with Munoz on the job
site no later than November 1983, that conversation could not have
taken place. [END FN 2] [7]
[8] 12 sheets of 4' X 12' interior drywall in an hour (Tr. 946)
(See Appendices A, B). An examination of his testimony, however,
indicates that Skeen essentially testified that he could hang
drywall about twice as fast as a 2-man crew. Skeen testified that
a crew would go in and hang the interior drywall for one apartment
unit in about six or seven hours (Tr. 938, 968); however, Skeen
said that he "could hang two of those units a day" by himself
(Tr. 938). Thus, even if the testimony of Skeen and George Apple
about their own ability to install drywall with singular alacrity
is to be believed, their testimony does not appear to effectively
contradict the testimony of the employee claimants about the rate
of piecework production for the average journeyman worker.
Furthermore, the testimony of Skeen and George Apple does not
support the notion that the purported "time study" was a good
faith effort by Great Western to meet the prevailing wage
requirements.
In light of all the circumstances described above, the Board
concludes that the decision and order of the ALJ on the issue of
underpayment of wages must be reversed, and the matter should be
remanded to the ALJ for further proceedings. The Solicitor
contends (Administrator's Petition at p. 24), and the Board agrees,
that the few specific credibility determinations made by the ALJ
regarding the testimony of employee claimants did not provide a
basis for assessing the credibility of the employee testimony as a
whole, nor was it appropriate for the ALJ to make assumptions about
the credibility of non-testifying employees -- including those
employees whose testimony was precluded by the ALJ (see ALJD at 11-
12). Accordingly, on remand the record should be reopened for
submission of such additional evidence, including additional
testimony of employee claimants, that the parties may wish to
present on the issue of underpayment of wages.
On remand, the ALJ should take into consideration the specific
points addressed by the Board herein. And although the Board
leaves the task of making factual findings and credibility
resolutions to the trier of fact, we note that the evidence that
has been submitted by the Department of Labor appears sufficient to
prove that violations have occurred as well as the extent of the
violations, absent credibility determinations rejecting the
evidence as to specific employees, or findings that Great Western
has offered evidence sufficient to negate the inferences that can
be drawn from the Department's evidence.
B. Debarment of Great Western and Moore
Although the ALJ in this case stated that Great Western and
Moore had made a good faith effort to pay the applicable prevailing
wages, the ALJ determined that Great Western and Moore should be
debarred for commission of serious record keeping violations. Upon
remand of this matter, the ALJ's ruling that debarment is warranted
absent underpayment of wages will become merely an academic point
if, as seems likely, back wages are awarded to the employee [8][9]
claimants. It is well established under Board precedent that
falsification of certified payrolls to simulate compliance or to
conceal violations constitutes an "aggravated or willful"
violation of the Related Acts within the meaning of 29 C.F.R.
5.12(a)(1), and warrants debarment. See, e.g., A. Vento
Construction, WAB Case No. 87-51 (Oct. 17, 1990) (29 WH 1685).
Even in the absence of underpayment of wages, however, the
Board would agree with the ALJ that the circumstances of this case
nevertheless warrant debarment of Great Western and Moore. Great
Western's complete failure to keep any records of the employees'
piecework production and the hours actually worked by employees
demonstrates a willful violation of the prevailing wage and record
keeping requirements of the Related Acts, Department of Labor
regulations, and the subcontract by which Great Western agreed to
abide by the applicable labor standards requirements. A contractor
undertaking a contract under the Davis-Bacon or Related Acts must
accept in whole, and not in part, the obligations imposed by law,
regulation and contract, and must abide by the terms of that
contractual relationship. In this case, however, Great Western
tried to circumvent the requirements to pay an hourly wage and to
keep accurate records of hours worked after having been awarded the
subcontract. Further, by asking employees to "verify" the
fictitious time records, Great Western's attempt to circumvent was
placed on the shoulders of those who were intended to be the
beneficiaries of the requirements of the Davis-Bacon and Related
Acts. The position taken by the company that it was only following
California practice for piece-rate drywall installation simply does
not pass muster on the Davis-Bacon job. Labor standards could not
be enforced if a contractor could excuse its failure to keep
records of hours worked and wages paid on the basis that its
actions are in keeping with the practice of other contractors in
the area.
The Board also rejects the contention that Hal Moore should
not be debarred. Moore executed the subcontract by which Great
Western agreed to adhere to the labor standards requirements and
also executed the labor standards certification in this matter
(Gov't Exh. 33, 36) and, accordingly, was the Great Western
official responsible for compliance with the labor standards
requirements. Moore also designated himself as the sole owner and
officer of the firm, and as the only person having a substantial
interest in the firm (Gov't Exh. 36). Moore is also the official
who authorized the company's bookkeeper to submit certified
payrolls for Great Western (Gov't Exh. 37). Although the record is
silent on the degree of Moore's involvement in the day-to-day
operations of Great Western, his responsibility for the firm's
compliance with the labor standards requirements is clear. Board
precedent does not permit a responsible official to avoid debarment
by claiming that the labor standards violations were committed by
agents or employees of the firm. See, e.g., Marvin E. Hirchert, WAB
Case No. 77-17 (Oct. 16, 1978). [9][10]
Accordingly, the ALJ's order debarring Great Western and Hal
Moore is affirmed. /FN3/
Senior Member Rothman, writing separately, concurring and
dissenting.
The Administrator petitions the Board to vacate the
Administrative Law Judge's decision and to reopen the ALJ hearing
to determine whether Great Western's employees were underpaid and
if so, the extent of underpayment. The Administrator requests
direction if such remand is made. By cross-petition Great Western
requests the Board to vacate the Administrative Law Judge's order
placing Great Western and Hal Moore on the ineligibility list for
three years. The factual background is fully stated in the
majority opinion. The petition of the Administrator should be
granted. However, I limit my views to considerations required for
the remand.
1. The ALJ hearing shall be reopened to determine whether
Great Western has introduced or can introduce additional evidence
sufficient to negate reasonable inferences that there were in fact
underpayments to employees. The review on remand shall include the
issue whether the schematic hourly rate formula worked out in
advance yielded less than the Davis-Bacon specified rate of $22.83
per hour.
2. Davis-Bacon Act enforcement begins with certified payroll
data. Employers may pay on a piece-rate basis on Davis-Bacon
covered work but records must be factual, not inferential or
conclusionary. Once the administrative agency has established that
payroll records submitted do not reflect actual hours worked,
pervasive issues re trustworthiness of the employer's computations
arise. The burden of going forward is upon the employer to prove
the employee did not work more than the hours based on an
arithmetical equation and then reported as hours actually worked.
3. When, as the ALJ concluded, inadequate payroll records
were sufficiently bad to put the Company and its president on the
three-year ineligibility list, the Administrator's request to
reopen the record to allow the DOL to prove violations in some
cases if not all is not unreasonable. Where the employer states
that an employee worked 33 hours at $22.83 an hour and the employee
states he worked 500 hours, four months instead of one week, there
is [10]
/FN3/ Great Western and Moore did not request that the debarment
period be reduced to less than three years. However, we note that
in A. Vento Construction (at p. 14), the Board held that
"aggravated or willful" violations of the labor standards
provisions of the Related Acts warrant an order imposing a three-
year debarment period absent extraordinary circumstances. See also
A. Vento Construction, at p. 18 (Member Rothman, concurring)
(falsification of payrolls warrants a three-year debarment period).
Persons and firms placed on the ineligible list pursuant to 29
C.F.R. 5.12(a)(1) are permitted to request removal from the
ineligible list after completing six months of the debarment
period, pursuant to the procedure set forth at 29 C.F.R. 5.12(c).
[END FN3] [10]
[11] a discrepancy to be looked into. When, as here, the DOL
wanted at the hearing and still wants to produce such witnesses, it
shall have the opportunity. The Administrator may not win anything
in the end, but the agency shall have the opportunity.
4. Great Western's position that it was only following
"California practice" by not keeping hours worked records for
piece-rate drywall installers is untenable. The Board will not
send the wrong message to employers in the construction industry
who employ on a piece-rate basis on which party will have the
burden to show Davis-Bacon compliance. The Company through its on-
site supervision could easily have kept adequate records of hours
worked concomitant with the formula it did use for dividing piece-
rate earnings by $22.83.
5. In remanding the case I would make clear that the ALJ is
not directed to change his decision but to reexamine his decision
in the light of additional evidence to be taken and to observe the
Mount Clemens Pottery Co. rules. Each side should not be limited
in presenting additional proof except in my view the government's
case must be limited to the 30 employees initially involved.
6. With respect to Great Western's cross-petition to reverse
the ALJ's decision putting the Company and Hal Moore on the
ineligibility list for three years, in the event on remand the ALJ
affirms his decision that there was no underpayment of employees at
the hourly wage rate of $22.83 per hour, the order placing the
Company and Mr. Moore on the ineligibility list should be
rescinded. Finding no underpayment violation at all but putting
the Company and the president on the ineligibility list in a Davis-
Bacon related Act case would not be warranted.
BY ORDER OF THE BOARD:
Charles E. Shearer, Jr., Chairman
Ruth E. Peters, Member
Stuart Rothman, Senior Member
Gerald F. Krizan, Esq., Executive Secretary
[11]
[87-57 -- APPENDIX A]
AVERAGE HOURLY RATE
At the base piece rate of 6 cents per square foot for installing
«-inch 4' X 12' sheets (48 square feet per sheet; $2.88 per sheet)
on interior walls of apartment units, the average hourly rate is:
30 sheets per 8 hour day = $10.80 per hour (30*$2.88/8)
35 sheets per 8 hour day = $12.60 per hour
40 sheets per 8 hour day = $14.40 per hour
45 sheets per 8 hour day = $16.20 per hour
50 sheets per 8 hour day = $18.00 per hour
55 sheets per 8 hour day = $19.80 per hour
60 sheets per 8 hour day = $21.60 per hour
63 sheets per 8 hour day = $22.68 per hour
64 sheets per 8 hour day = $23.04 per hour
65 sheets per 8 hour day = $23.40 per hour
70 sheets per 8 hour day = $25.20 per hour
85 sheets per 8 hour day = $30.60 per hour
95 sheets per 8 hour day = $34.20 per hour
100 sheets per 8 hour day = $36.00 per hour
APPENDIX A [END]
87-57 -- APPENDIX B]
AVERAGE NUMBER OF SHEETS PER HOUR
30 sheets per 8 hour day = 3.75 sheets per hour (30/8)
35 sheets per 8 hour day = 4.375 sheets per hour
40 sheets per 8 hour day = 5 sheets per hour
45 sheets per 8 hour day = 5.625 sheets per hour
50 sheets per 8 hour day = 6.25 sheets per hour
55 sheets per 8 hour day = 6.875 sheets per hour
60 sheets per 8 hour day = 7.5 sheets per hour
64 sheets per 8 hour day = 8 sheets per hour
85 sheets per 8 hour day = 10.625 sheets per hour
100 sheets per 8 hour day = 12.5 sheets per hour
APPENDIX B [END]
