POLLUTION CONTROL CONSTRUCTION CO., WAB No. 88-06 (WAB Apr. 27, 1990)
CCASE:
POLLUTION CONTROL CONSTRUCTION
DDATE:
19880111
TTEXT:
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[1] WAGE APPEALS BOARD
UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, D.C.
In the Matter of
POLLUTION CONTROL CONSTRUCTION COMPANY WAB Case No. 88-06
LISBON CONTRACTORS, INC. Dated: April 27, 1990
APPEARANCES: David Kraut, Esquire, for Lisbon Contractors, Inc.
Arthur Bolstein, 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
the Administrator of the Wage and Hour Division seeking review of
decision and order of the Administrative Law Judge (hereinafter
ALJ) dated January 11, 1988 in the above-captioned matter. The ALJ
ruled that respondent Lisbon Contractors, Inc., (hereinafter
Lisbon) was not required to pay its pipelayer crews for the time
they spent before the start of their regular shift and time spent
after their regular shift. The Administrator disputes the ALJ's
finding that "these activities were not an integral and
indispensable part of the principal activities for which these
workers were employed." [1]
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[2] The facts of the case are not in dispute. Lisbon entered
into a contract with the Environmental Protection Agency pursuant
to the Federal Water Pollution Control Act and the Contract Work
Hours and Safety Standards Act to construct a sewer system at
Elk-Pinch, West Virginia, at a cost of $3,942,070.85. In addition
to other employees on the project Lisbon employed pipelaying crews
consisting of pipelayers, pipelayer's helpers and laborers. Since
many of the employees were from out-of state, they lived in company
supplied apartments from which they traveled back and forth to work
in company pick-up trucks.
Lisbon established an office and storage yard for the
Elk-Pinch job in which it stored trucks, front-end loaders, tools,
machinery and supplies. Tools and machinery were locked up in a
barn located on the property at night due the burglary of some of
these items early in the project.
The Wage and Hour Division claimed that members of the
pipelaying crews were required to report to the yard approximately
20 to 30 minutes before the official start of the day to load their
pick-up trucks with tools, machinery and supplies and to transport
the loaded trucks to the construction site. At the end of the day
the pipelaying crews were required to return the trucks to the
yard, unload them, and lock up the tools and machinery before they
were allowed to drive the pick-up trucks back to the apartments
where they lived. These pre-shift and post-shift work [2]
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[3]
activities were uncompensated. The Wage and Hour Division
determined that each member of the pipelaying crew was not
compensated for 17 1/2 to 55 minutes per day per employee, or
an average of 38 minutes of work each shift.
The Wage and Hour investigation concluded that a number of
employees were not paid the wages due them. Due to this
uncompensated time, these employees also received no overtime
compensation for hours worked in excess of eight in a day or
forty in a week. In addition one employee was found not to
have been paid the applicable prevailing wage rate appropriate for
his classification. A total of $24,489.60 in back wages was
calculated as owed to the employees. EPA is withholding sufficient
funds to cover the assessed liability. Lisbon's position is that
the record does not support the contention that it required its
employees to assist in the loading and unloading of the trucks,
that such loading and unloading would have been unnecessary if the
employees had not used the trucks to travel to their company
furnished apartments, that the loading of supplies took no more
than two minutes per day and was de minim[i]s and that Lisbon
should not be penalized for acceding to the wishes of its employees
and permitting them to use the company vehicles.
Lisbon requested a fact-finding hearing before an ALJ. The
ALJ in his decision and order of January 11, 1988 found that some
similar preshift and post shift work performed by other workers was
compensable, but found in agreement with [3]
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[4] Lisbon that the twenty workers who comprised the pipelayer crews
were due nothing. The ALJ determined that loading and unloading the
pick-up trucks was primarily for the employees['] convenience so they
could use the trucks. He concluded that Federal courts construing the
scope of the Portal-to-Portal Act have held that an employee is not
entitled to compensation for any activities which are for his own
convenience and not for the benefit of his employer. The Wage and
Hour Administrator disputes the ALJ's findings in this appeal.
The Board considered this appeal on the basis of the petition
for review filed by the Administrator, the record of the appeal
before the ALJ, and the brief filed on behalf of Lisbon in
opposition to the Administrator's petition for review. An oral
hearing was held on October 24, 1989 at which all parties were
present or represented by counsel.
- - -
This matter was referred to the Department of Labor (DOL)
Office of Administrative Law Judges for a formal hearing which was
held on April 3 and 4, 1986, and May 13, 14 and 15, 1986, in
Philadelphia, Pennsylvania. The Wage and Hour investigation
involved allegations of violations of labor standards under
Davis-Bacon Related Acts and of the Contract Work Hours and Safety
Standards Act. At the hearing the DOL asserted claims for
underpayment of wages [4]
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[5] and overtime affecting nearly fifty different employees. The
ALJ's decision which is the subject of this appeal was rendered on
January 11, 1988, (with an errata addendum dated February 29, 1988),
and is twenty single-spaced, typewritten pages in length. In his
decision the ALJ granted the Department's claims with respect to certain
back wage and overtime payments due 38 employees, but denied the
Department's claims in other instances affecting thirty employees. (DOL
asserted multiple claims for some employees.)
The ALJ made the following determinations:
(1) Denied DOL claims for five masons and mason's helpers;
(2) Denied DOL claims for twenty laborer/pipelayers;
(3) Denied DOL claims for one driver;
(4) Denied DOL claims for four blasters and drillers;
(5) Partially granted DOL claims for nine backhoe operators;
(6) Partially granted DOL claims for four front-end loader
operators;
(7) Partially granted DOL claims for three bulldozer
operators;
(8) Granted DOL claims for seven dump truck drivers;
(9) Granted DOL claims for two misclassified employees; and
(10) Granted DOL claims for thirteen employees for premium
pay for deep trench work.
The ALJ throughout his opinion has drawn meticulous
distinctions among the myriad of employees, classifications, [5]
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[6]
work schedules, and alleged violations herein. The Administrator
has appealed the ALJ's decision only with respect to his denial of
claims made on behalf of the twenty laborers/pipelayers. The ALJ
concluded that time spent by these employees loading and unloading
pickup trucks before and after work ". . . was primarily for their
own convenience so they could use the trucks''. /FN1/ The Judge
concluded ". . . that these activities were not an integral and
indispensable part of the principal activities for which these
workers were employed, and are, therefore, not compensable . . ."
under Sec. 4(a)(1), Portal-to-Portal Act, 29 U.S.C. Sec. 251. /FN2/
The Administrator asserts that "The ALJ is wrong and must be
reversed". /FN3/
The ALJ's decision is both judicious and soundly reasoned, and
appears fully supported by the testimony and record in this case.
Many of the fact determinations upon which the ALJ based specific
decisions depend to some degree upon the credibility of witnesses
who testified before him at the hearing. As this Board held in
Homer L. Dunn Decorating, Inc., WAB Case No. 87-03, (Mar. 10,
1989): "It is for the trial judge to make determinations of
credibility, and an appeals body such as the Wage Appeals Board
should be loathe to reverse credibility findings unless clear error
is shown." [6]
/FN1/ ALJ's Decision and Order, p. 10.
/FN2/ ALJ's Decision and Order, p. 10.
/FN3/ Administrator's Petition, p. 8. [6]
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[7] As the Supreme Court stated in Universal Camera v. NLRB, 340
U.S. 474 (1950) at P. 496: ". . . material facts in any case depend
upon the determination of credibili[]ty of witnesses as shown by
their demeanor or conduct at the hearing." The Board does not find
reversible error in fact or law.
The Court in Universal Camera also stated: "There are no
talismanic words that can avoid the process of judgment." The
ALJ's decision that the preliminary and postliminary activities of
the twenty laborers/pipelayers did not constitute compensable time
under the Portal-to-Portal Act is a reasonable conclusion.
While the Portal-to-Portal Act does not apply specifically to
Davis-Bacon Related Acts (see Glenn Electric v. Donovan, 755 F.2d
1028 (3rd Cir. 1985)), it is important that Davis-Bacon and
Davis-Bacon Related Acts matters should have parallel and equal
interpretation except where express provisions of law indicate a
difference intended by Congress. Thus the ALJ's use here of the
Portal-to-Portal Act for guidance as to the definition of
"compensable time" is appropriate.
The Board concludes that the decision of the ALJ, reached with
the benefit of extensive testimony, is adequately supported by the
evidence in the record of this case, and thus is within his
discretion and authority, and is hereby affirmed.
- - - [7]
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[8] Member Rothman:
I concur in the result expressed above to form the majority
decision but having reached my decision by different reasoning I
state my views separately.
Although this case comes to the Board in a Davis-Bacon Act
setting, it is essentially a Fair Labor Standards Act (FLSA) matter
concerning preliminary and postliminary working time. This case
would, under normal conditions, be handled by the Wage and Hour
Administrator through FLSA investigatory and enforcement channels.
The Wage and Hour Administrator has pursued this matter
through Davis-Bacon Act procedures. There is nothing wrong with
that, but it is a[] Fair Labor Standards Act enforcement matter.
The ALJ's decision in this case will shed no light on how the
Davis-Bacon Act and Davis-Bacon Related Acts are to be interpreted
and applied.
Pursuant to the internal procedures of the Wage and Hour
Division, this matter was referred to an Administrative Law Judge.
The ALJ hearing became the initial forum for full consideration of
the facts and applicable law. It reaches the Board by the
Administrator's appeal from the ALJ's recommended decision. Under
these circumstances the moving party on the appeal, the Wage and
Hour Administrator who has sought the enforcement of the Fair Labor
Standards Act through Davis-Bacon Act and Wage Appeals Board
procedures, has a burden to show that the decision of the ALJ [8]
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[9] was so lacking in factual substantiation or so erroneous as
to the legal standards applied as to be arbitrary, compelling the
Board not to let it stand. This being the kind of case it is, it
is the Board's conclusion that the ALJ applied the correct FLSA law
to the factual findings as he found them. The Board cannot
conclude that his factual findings on the question of preliminary
and postliminary working time were so lacking in factual support as
to have been made arbitrarily.
Within and limited to the procedural and factual context of
the case, the Board concludes that the findings and recommended
order of the ALJ based thereon find adequate justification in the
record warranting affirmance. The Board affirms the findings,
conclusions and order of the ALJ and dismisses the petition herein.
- - -
Member Dunn, dissenting
The ALJ denied claims of the twenty workers on the pipe laying
crews. He concluded that the time spent loading and unloading
pickup trucks in the company yard at the start and end of the work
day was otherwise unnecessary and primarily for the worker's own
convenience so that they could use the trucks to get to and from
their company furnished lodgings. The ALJ concluded that the
activity was not an integral and ind[i]spensable part of the
principal activities for which these workers were employed.
However, neither his own findings of fact, findings he [9]
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[10]
supports such a conclusion. [sic]
It is elementary that when employers establish yards,
stocking places and other similar areas, that is a necessity for
the employer and no benefit to the employees. In this case the ALJ
found that "it is uncontradicted that in exchange for the daily use
of these trucks, Lisbon required the workers to remove some of the
valuable equipment from the truck each evening and to load it the
next morning."
Although Lisbon maintained that there was no required 7 AM
starting time, the ALJ found that many of the employees reported to
the yard in sufficient time in advance of 7AM, so that they could
be at their designated job site for the day at 7:30 AM. "Thus, the
evidence which established that these particular Lisbon employees
. . . reported in advance of the 7:30 a.m. official starting time
stands unrefuted."
There was also evidence that the ALJ ignored and made no
findings which were of legal import in reaching his conclusion.
For instance, eight of the twenty pipe laying crew employees who
lived in West Virginia, did not reside in company furnished
lodgings, and did not use the company pickup trucks for personal
transportation. The record also shows that all the pipelayer crew
members (local and out-of-state workers) loaded and unloaded the
trucks during the day as well as before and after the work shift.
Also, to protect against theft and vandalism (which had occurred),
the tools and supplies and equipment removed from the trucks were
[10]
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[11] [. . .] stored overnight in a locked storage shed at the
yard and then returned to the trucks for the next day's work.
The ALJ reached the legal and factual conclusion that the
loading and unloading of the trucks was for the workers[']
convenience so that they could use the trucks and not for the
benefit of the employer. He then cites Mitchell v. Southeastern
Carbon Paper Company, 228 F.2d 934 (5th Cir. 1959) which stands for
the proposition that an employee is not entitled to compensation
for any activities which are for his own convenience and not for
the benefit of the employer. Of course, Mitchell stands for the
proposition that no benefits flow to the employer. Yet in the
ALJ's next sentence he finds that both Lisbon and the employees
benefitted from the arrangement.
The ALJ ignored numerous cases, /FN4/ including two circuit
court cases holding time spent loading and/or driving small trucks
to be compensable. In Secretary of Labor, U.S. Dept. of Labor v.
E. R. Field. Inc. 495 F.2d 749, 750 (1st Cir. 1974), an electrician
who drove one of his employer's trucks containing electrical
supplies and tools used on occasion at [11]
/FN4/ Steiner v. Mitchell, 350 U.S. 277 (1956); Mitchell v.
King Packing Co., 250 U.S. 260 (1956); Cooley v. U.S., 26 WH
Cases 49 (C.A. T.C. 1983); Handler v. Thrasher, 191 F.2d 120
[(]10th Cir. 1951); Republic Publishing Company v. American
Newspaper Guild, 172 F.2d 943 (1st Cir. 1949); Cappler v.
Republic Picture Corp., 59 F.Supp. 112 (S.D. Iowa), affirmed
151 F.2d 543 (8th Cir. 1945); Marshall v. Stewart Bros.
Construction Co. 184 F.Supp. 886 (D. Neb. 1960); Whelan
Security Co. v. U.S. 27 WH Cases 127 (U.S. Ct. Claims 1975). [11]
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[12] the jobsite was paid for the drive to the jobsite but not the
return trip. Affirming the award, the court stated: "The district
court found that while Audet 'might derive some benefits from
. . . use of the truck in order to get to the job, the essential
purpose of such use of the truck was (a) to convey tools necessary
for use on the job and (b) to transport certain necessary supplies
to the job' . . . [*The activity is employment under the Act if it
is done at least in part for the benefit of the employer, even
though it may also be beneficial to the employee."*] Id. at 750,
751, [*emphasis added*]. Certainly, this reasoning takes the
ground from under the ALJ's conclusion that mutually beneficial
activity means noncompensable time. Also, the record in the
present case shows that the trucks transported tools and supplies
that were used at the jobsites and stored in the yard at night,
further undercutting the ALJ's ruling. (Tr. 159-160, 162-167,
174-175, 564-566, 724-725, Gov. Ex. 4, pp. 10-11, Gov. Ex. 5, p.
13).
In Dunlop v. City Electric. Inc., 527 F.2d 394, 397 (5th Cir.
1976), electricians and electrician helpers arrived 15-20 minutes
early to perform tasks preparatory to departing the shop for their
job sites. Their tasks included filling out daily time and
material sheets, checking job locations, "removing from trucks
trash accumulated during the previous day[']s work, loading the
trucks with standard materials and any additional materials needed
for the particular day's job," [12]
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[13] fueling the trucks, and gathering electrical plans for the day's
work. The lower court denied relief as either noncompensable under the
Portal-to- Portal Act or (in respect to picking up plans and loading
supplies) requiring so little time as to be de minimis. The appellate
court found the activities to be compensable under the Act, observing:
"The legislative history . . . indicates that Congress intended
the words 'principal activities' to be construed liberally . . . to
include any work of consequence performed for the employer, no
matter when the work is performed."
Accordingly, I would reverse the ruling of the ALJ and grant
the claim of the Administrator for back wages and overtime
compensation for the employees named and in the amounts shown on
page 11 of the ALJ's decision.
BY ORDER OF THE BOARD Craig Bulger, Esq., Executive Secretary [13]
