Disputes concerning the payment of
prevailing wage rates and proper
classification by, and proposed debarment (*)
for labor standards violations of:
ABHE & SVOBODA, INC.,
ARB CASE NO. 01-063
and
ALJ CASE NOS. 99-DBA-20 through 27
JEWELL PAINTING, INC.*
ARB CASE NO. 01-066
and
CAMERON JEWELL,*
ALJ CASE NOS. 99-DBA-20
through 27
and
BLAST ALL, INC.,
ARB CASE NO. 01-068
and
ALJ CASE NOS. 99-DBA-20
through 27
GEORGE CAMPBELL PAINTING CORP.
ARB CASE NO. 01-069
and
E. DASKAL CORPORATION,
ALJ CASE NOS. 99-DBA-20
through 27
and
SHIPSVIEW CORPORATION.*
ARB CASE NO. 01-070
ALJ CASE NOS. 99-DBA-20
through 27
With respect to work, cleaning and
painting of bridges, performed pursuant
to contracts issued by the State of
Connecticut's Department of Transportation.
[Page 2]
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Respondents Abhe & Svoboda, Inc., and Blast All, Inc.:
Paul M. Lusky, Esq., Kruchko & Fries, Baltimore, Maryland
For the Respondents Jewell Painting, Inc. and Cameron Jewell:
Constantine G. Antipas, Esq., P.E., Antipas Law Firm, Groton, Connecticut
For the Respondents George Campbell Painting Corp. and E. Daskal Corp.:
Jane I. Milas, Esq., Garcia & Milas, P.C., New Haven, Connecticut
For the Respondent Shipsview Corporation:
Chris Deligiannidis, pro se, Plymouth, Massachusetts
For the Administrator, Wage and Hour Division, U.S. Department of Labor:
Ford N. Newman, Esq., Douglas J. Davidson, Esq., Steven J. Mandel, Esq., Howard M. Radzely, Esq., Solicitor, U.S. Department of Labor, Washington, D.C.
FINAL DECISION AND ORDER
These consolidated cases arise from the finding of the Wage and Hour Administrator, United States Department of Labor, after an investigation, that contractors performing bridge painting for the State of Connecticut in the early and mid-nineteen nineties had misclassified and underpaid certain workers under Department of Labor wage determinations issued under the Davis-Bacon Act (DBA) 4 U.S.C.A. § 3141 et seq. (West Supp. 2003), and Davis Bacon Related Acts (DBRA), 23 U.S.C.A. § 113 (West 2001). The Administrator also determined that, in violation of Department of Labor regulations and the Contract Work Hours and Safety Standards Act (CWHSSA), 40 U.S.C.A. § 3702 et seq. (West Supp. 2003),certain contractors had falsified records of hours worked and failed to pay workers overtime. The Administrator calculated that the contractors owed over $2 million in back pay to employees and proposed to debar several of the contractors from eligibility for federal and federally-assisted construction contracts. The contractors requested a hearing pursuant to 29 C.F.R. § 5.11 (2004), which was held on forty-nine days from January to August 2000. The Administrative Law Judge issued a recommended decision (with a revised Appendix) (R. D. & O.) upholding the Administrator's findings. The contractors petitioned the Administrative Review Board (ARB or Board) for review of that decision. We affirm for reasons that we discuss.
[Page 3]
BACKGROUND
The contractors and their contracts were as follows. George Campbell Painting Corporation (Campbell) entered into two contracts with the Connecticut Department of Transportation (ConnDoT) in 1992 to clean and paint the north and southbound spans of the Gold Star bridge in Middlesex County, Connecticut (Gold Star). (Complainant's Exhibit (CX) 16a and b). Campbell signed a collective bargaining agreement with the Painters and Allied Trades of America, known as the Statewide Bridge Agreement. (CX 145). Campbell contracted with E. Daskal Corporation to do clean-up work on the ground beneath the bridge spans. (Testimony of James Peckham (Peckham) from hearing transcript at 2084-85).
Abhe & Svoboda, Inc. (Abhe or A. & S.) entered into three contracts in 1994 and 1995 with ConnDoT to clean and paint bridges. (CX 2, 4, 10, 11A, 12). These projects were known as the Arrigoni, Mill River and Old Lyme/East Lyme projects. Abhe subcontracted cleaning and painting work to Jewell Painting, Inc. (Jewell) on the Arrigoni project in 1994. (Cameron Jewell at 9956, 9967-70; CX 206A, 206B). Abhe and Jewell were non-union companies. (Gail Svoboda at 7909; Jewell at 10073).
(Loubier at 7232; see also Loubier at 7237 (same)).
A. & S. introduced numerous exhibits intended to show that painters, carpenters and laborers worked on the same projects, implying that carpenters and laborers worked on painting-related aspects of those projects. Loubier's testimony also refutes that assertion. He testified about numerous general contractors that had reached a collective bargaining agreement with the carpenters through the CCIA and for which union carpenters had done work, including Arborio Corporation; Baier Construction; Blakeslee, Arpaia, Chapman, Inc.; and Brunalli Construction. (Loubier at 7237-41).With respect to building scaffolds or platforms for painters, Loubier said
On the projects that I've watched as a business agent, I don't know of any scaffolds that we've built for the painters. And my recollection is that painters did their own if they needed a scaffold, or they worked off a scissor lift truck or scissor lift platform where they operated it themselves.
(Loubier at 7241).
B. Contractors' argument that limited area practice survey was inadequate
The Respondent contractors charge that the limited area practice survey was inadequate, but this is in reality a collateral attack on the prevailing wage rates. The WD had already been issued and used in the bidding process. R. D. & O. at 31. If contractors wish to protest the use of union wage rates as prevailing, it must be at the wage determination stage, before the award of the contract, and not at the enforcement stage. Clark Mech. Contractors, Inc., WAB No. 95-03 (Sept. 29, 1995); Fry Bros., slip op. at 17.
[Page 20]
As the ALJ pointed out, the LAPS was not used to establish wage rates, but rather as an investigatory tool in the compliance investigation to verify information the investigator received from union and other representatives. R. D. & O. at 39. The number, nature and timing of the projects surveyed in the LAPS is not a significant issue. Id. at 31.Even if inadequate, the LAPS did not relieve the Respondent contractors of their responsibility to comply with the DBRA. Id. at 39. The legally controlling issue is whether painters' rates had to be paid for all work performed on the bridge painting projects. Id. at 30, 37-38.
A. & S. asserts it was error for Wage and Hour (as well as the ALJ) to refuse to consider assignments of work by union contractors to non-union employees as evidence of local area practice. A. & S. argues that "[i]t was Complainant's burden to show that there was a uniform agreement between the crafts that only painters should do the collection and containment work on these projects. The DOL did not carry its burden to show that only painters built containments and shoveled grit in Connecticut. " A. & S. Opening Brief at 53-54.
A. & S. misunderstands the "prevailing wage" concept in the DBRA. Prevailing wage is not synonymous with "universal" or "uniform." The regulations clearly state "[t]he prevailing wage shall be the wage paid to the majority (more than 50 percent) of the laborers or mechanics in the classification on similar projects in the area during the period in question." 29 C.F.R. § 1.2(a)(1)(2003). Furthermore, as discussed above, under the FOH, when questions arise as to the proper classification for the work performed by a laborer or mechanic, Wage and Hour first conducts a "limited area practice survey." FOH, § 15f05(b). There is no question here that the WD contains union negotiated rates. See discussion above of notation "PAIN0011C." In such circumstance, the FOH directs that the unions within whose jurisdiction the work may be should be contacted to determine whether the respective union performed the work in question on similar projects in the county. If so, each union should be asked how the individuals who performed the work were classified. In addition, the information provided by the unions should be confirmed by the collective bargaining representative of management. Id. at § 15f05(c)(2).
4 Referred to in the transcript as "beach" platforms.
5 The rates varied depending on the year, collective bargaining agreement, and wage determination involved.
6 Lanier did add one caveat, that "if somebody else has already built a structure or scaffolding to get up to a certain point, the painters aren't going to tear it down and rebuild their own structure. Aside from that, they handle all of their own access structures." (Peckham at 2197).
7 Campbell Painting and E. Daskal take issue with the ALJ's characterization of the testimony of White in an effort to show that it was perfectly legitimate for a contractor to assign grit collection to laborers. Opening Brief of Campbell and Daskal, at 25-26. In fact, White's testimony supports the Administrator's position that painters claim and do all the work on painting jobs. White testified:
I seen the construction trailer [on the Gold Star bridge project], and I went up and talked to him, see if there was any work or if I could get laborers on it. At that period it was slow. You went all over trying to put your people to work. And I talked to them. And they said it was a painting job. It was jurisdiction of the painters.
(White at 9813).
8 A. & S. makes much of the fact that the Connecticut Statewide Bridge Agreement for 1995-1996 withthe painters union did not explicitly claim rigging in the jurisdiction of work clause, and when Peckham pointed this out to the union, they said it was an oversight and obtained an addendum to the agreement specifically covering rigging. A. & S. claims this shows rigging was not claimed by the painters and they were trying to cover their tracks by obtaining the addendum after the fact. Opening Brief of A. & S. and Blast All, Inc., at 46-49. Whatever interpretation is placed on this sequence of events, it cannot be denied that the carpenters did not claim rigging on painting jobs, i.e., building scaffolds and containment structures. See discussion infra.
9 Loubier gave detailed testimony about what containment structures are, demonstrating his personal familiarity with that work. (Loubier at 7230-31).Whether Loubier knew about scaffold erection practices on each and every painting contract during the relevant period does not significantly detract from the probative force of his testimony, particularly his statement that the carpenters did not claim rigging work on painting jobs or the painting portions of bridge construction or repair projects.
10 A. & S. disparages the statements of the painters union representatives as self-serving; A. & S. has no explanation for the statements of the other unions' representatives, as well as the director of labor relations for the CCIA, that were in complete agreement with the painters.
11 It is difficult to understand the relevance of some of the exhibits A. & S. refers to in support of its argument that mixed crews of painters, carpenters and laborers worked on bridge painting projects. For example, A. & S. cites RX 20, a partial copy of the Contract and Special Provisions for Rehabilitation of Bridge No.0138-94, Route 156 over AMTRAK. Nothing in that document states which trades shall perform which tasks on the project; the same is true as to RX 22.
12 The only dispute was whether the change was "dramatic" or only "evolutionary."
13 The only exception was where other trades had erected platforms for use in other aspects of bridge construction, when painters would use those platforms rather than inefficiently tear them down and build their own. (Peckham at 2197; Murray at 6242; Cieri at 6503; Loubier at 7219-20; Granell at 7104-05; Thomas M. Laugeni at 7499-7500, 7526, 7542; Wambolt at 8895-96).
14 Contrary to A. & S.'s assertion, Peckham's survey was not limited to local practices before the advent of 100 per cent containment. He investigated bridge painting projects from June of 1993 to June of 1995. (Peckham at2145).
15 Jewell Painting reiterated A. & S.'s estoppel argument, infra, and made an additional assertion. Jewell claimed that, because there was no regulation requiring payment of local area prevailing wage rates, Jewell could rely on ConnDoT's actions for estoppel purposes. Reply Brief in Support of Petition for Review of Jewell Painting, Inc. and Cameron Jewell, at 5. However, the regulations explicitly provide "[t]he prevailing wage shall be the wage paid to the majority . . . of the laborers or mechanics in the classification on similar projects in the area during the period in question." 29 C.F.R. § 1.2(a)(1) (2004) (emphasis in original).
16 We express no opinion as to whether A. & S. may have a cause of action against the State of Connecticut for indemnity for the back wages due as a result of payment of laborer's rates for shower time.
17 The definition of "site of the work" was subsequently amended, but Daskal employees would be covered under the amended definition as well. See 29 C.F.R. § 5.2(l) (2004).
18 Two exhibits labeled "CX 289" are in the record; this discussion refers to the one dated by hand "7/18/00," the deposition of Lowell Passons. (The other CX 289, dated by hand 6/9/00, is the deposition of Steven Bogan.)