L. P. CAVETT CO., WAB No. 89-15 (WAB May 31, 1991)
CCASE:
L. P. CAVETT COMPANY
DDATE:
19910531
TTEXT:
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[1] WAGE APPEALS BOARD
UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, D. C.
In the Matter of:
L. P. CAVETT COMPANY
GEORGE ST. JOHN'S TRUCKING WAB Case No. 89-15
Contract No. R-15309
Resurfacing of State Road 3
Rush County, Indiana
BEFORE: Charles E. Shearer, Jr., Chairman
Ruth E. Peters, Member
Patrick J. O'Brien, Member
DATED: May 31, 1991
DECISION OF THE WAGE APPEALS BOARD
This matter is before the Wage Appeals Board on the petition
of L. P. Cavett Company ("Cavett"), seeking review of a ruling of
the Wage and Hour Administrator dated May 16, 1989, wherein it was
determined that the prevailing wage requirements of Davis-Bacon
Related Acts ("DBRA") apply to the employees of an independent
trucking company hauling asphalt to the construction project.
Cavett claims that the employees of the trucking company are not
subject to the DBRA, and that the back wage assessment is
time-barred by operation of the Portal-to-Portal Act. For the
reasons contained herein, the Administrator's ruling is affirmed.
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[2] I. BACKGROUND
Cavett was the prime contractor on Indiana Department of
Highways Contract No. R-15309, which included two Federal Highway
Administration projects and contained prevailing wage and labor
standards provisions (Record, Tab J; hereinafter, "Contract"). The
contract required Cavett "to furnish all materials, equipment, and
labor necessary, and to fully construct the work." The contract
further stated:
Contractors or subcontractors who enter into lease or rental
agreements for equipment with operators and/or for trucks
with drivers, shall insure that properly certified payrolls
are submitted for all equipment operators and/or truck drivers
that perform work on this contract. This payroll must verify
that these employees have been paid not less that the
predetermined wage rate for the classification of work as set
out elsewhere in this contract.
The contract was awarded to Cavett on June 10, 1985; on June
12, 1985, a preconstruction conference was held wherein the
contract and its requirements were discussed in detail. Indeed,
Cavett went through numerous contract provisions to resolve any
ambiguities.
Cavett entered into an agreement with the George St. John's
Trucking Company ("St. John's") to haul materials, supplies, and
equipment. (Record, Tab P). The Solicitor's Office, in its
statement of facts, identifies this document, clearly labeled
"Agreement," as a subcontract. This contract did not contain
Davis-Bacon labor standards provisions, and it is undisputed that
the truck drivers working for St. John's were not paid prevailing
wages or proper overtime. The Administrator determined that
Cavett, as prime contractor, was liable for back wages in the
amount of $11,202.10.
II. DISCUSSION
Cavett disputes the back wage determination because it
alleges that St. John's truck drivers were the employees of an
independent contractor. The facts of the case before the Board
would support the argument that the employees of St. John's
Trucking were not employed on the site of the work. See Building
and Construction Trades Department, AFL-CIO v. Department of Labor,
Wage Appeals Board ("Midway Excavators"), No. 90-5341 (D.C. Cir.
May 17, 1991).
Were the contract vague, Midway Excavators might be
controlling. However, the contract required Cavett to supply
materials for the highway project, and to guarantee the payment of
prevailing wages to truck drivers so employed (be they
owner-operators or employees of independent firms). As a [2]
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matter of contractual obligation, St. John's employees were
entitled to the wages specified in the contract.
Finally, Cavett contends that the back wage determination is
barred by the statute of limitations contained in the
Portal-to-Portal Act, 29 U.S.C. [sec] 255. It is well settled that
the Portal-to-Portal time limitation does not apply to DBRA cases.
Accordingly, the petition for review is denied and the
Administrator's ruling is affirmed.
BY ORDER OF THE BOARD:
Charles E. Shearer, Jr., Chairman
Ruth E. Peters, Member
Patrick J. O'Brien, Member
_______________________________
Gerald F. Krizan, Esq.
Executive Secretary [3]
