SPARROWORLD BAPTIST CORP., 1983-DBA-11 (ALJ May 13, 1986)
CCASE:
SPARROWORLD BAPTIST CORPORATION
DDATE:
19860513
TTEXT:
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[1]
U.S. Department of Labor Office of Administrative Law Judges
1111 20th Street, N.W.
Washington, D.C. 20036
In the Matter of
Disputes concerning the payment of
prevailing wage rates and proper
classifications by:
SPARROWORLD BAPTIST CORPORATION ALJ CASE NO. 83-DBA-11
With respect to laborers and
mechanics employed by it under
District of Columbia Contract Nos.
0492-AA-04-1-0-CC, 0483-AA-04-1-O-CC
and 0491-AA-04-1-0-CC
Reverend Cleveland B. Sparrow, Sr.
For the Contractor
Arthur J. Corrado, Jr., Esquire
For the U.S. Department of Labor
Before: DAVID A. CLARKE, JR.
Administrative Law Judge
DECISION AND ORDER
The disputes to be resolved arise under the Davis-Bacon
Act, 40 U.S.C. [sec] 276a et seq. (hereinafter "the Act").
Authority to issue regulations, conduct investigations, and enforce
compliance with the Act is vested in the Department of Labor
(DOL) pursuant to the Reorganization Plan No. 14 of 1950,
64 Stat. 1276. Pertinent regulations are contained in 29
C.F.R. Part 5.
The Act requires that those contracting with the United
States or the District of Columbia, for contracts of $2,000.00
or more, to provide construction, alteration, and/or repair,
including painting, must pay the prevailing wage to various
classes of laborers. This wage is determined by the Secretary
of Labor.
The Secretary of Labor, by the Regional Solicitor,
alleges that Sparroworld Baptist Corporation (Contractor)
failed to pay certain of its employees the applicable prevailing
wage for all hours worked under the contracts at issue.
Though Contractor did not participate in the hearing,
as discussed below Contractor did allege in pre-hearing
correspondence that those workers cited as employees by DOL
were in fact independent contractors or subcontractors.[1]
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This case was referred to the Office of Administrative
Law Judges on December 22, 1982. On January 14, 1983,
Associate Chief Judge Everette E. Thomas issued a Pre-hearing
order, directing DOL to furnish information within 30 days
and ordering an Answer from Contractor 20 days thereafter.
DOL filed a Response on February 18, 1983. On July 17, 1984,
DOL filed a Motion for Default Judgment for Contractor's
Failure to File an Answer. Contractor filed an Opposition
to the Motion on August 3, 1984. DOL renewed its Motion on
August 21, 1984, stating that Contractor's Opposition did not
constitute an Answer and that Contractor was still in default.
On August 23, 1984, Contractor filed a mailgram which, among
other things, denied all the particulars of DOL's Response to
the Pre-Hearing Order.
On January 18, 1985, Judge Thomas issued an Order, denying the
Motion for Default Judgment.
On March 11, 1985, DOL filed a Request for Admissions and
Interrogatories. On March 22, 1985, Contractor filed a Motion to
Dismiss and a Cross-Claim. DOL filed a response to Contractor's
Motion and Cross-Claim on April 8, 1985 .
On May 10, 1985, Judge Thomas denied Contractor's Motion to
Dismiss and granted DOL's Motion to Strike the Cross-Claim.
The case was assigned to the undersigned on November 12,
1985 and was scheduled to be heard on February 7, 1986.
On December 20, 1985, Contractor filed a Notice of Deposition,
listing more than 25 people, including Casper Weinberger, Secretary
of Defense; John Lehman, Secretary of the Navy; Thomas Owens,
President of Perpetual Bank; and Marion Barry, Mayor of the
District of Columbia. On January 10, 1986, DOL filed a Motion for
Protective Order and a Motion to Compel Answers to Department of
Labor's Interrogatories and to Have Department of Labor's Request
for Admissions Deemed Admitted. On January 29, 1986. Contractor
filed a document entitled, "Continuous Racial Discrimination
Complaint, Theft of Money and Deed Complaint, Cover-Up and Motion
for Summary Judgment -- OWCP Payment."
On February 4, 1986, I ordered that the Notice of Depositions
be quashed and that Contractor respond to DOL's Interrogatories by
February 14, 1986 that DOL' s Request for Admissions be denied: and
that Contractor's Motion for Summary Judgment be denied. On the
same date, I wrote to Reverend Sparrow, President of Sparroworld
Baptist Corporation, urging him to seek legal representation. [2]
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[3] On February 7, 1986, Contractor filed, "Racial Discrimination
Complaint, Plaintiff [sic] Sparrow Request for Admissions, Motion
for Protective Order, Motion to Compel Answers, Production of Deed,
Documents and Appearance for Deposition, Motion for Summary
Judgment or In The Alternative Default Judgment." On February 14,
1986, DOL filed a response in opposition.
In an Order of February 19, 1986, I found this not a proper
forum for initiating racial discrimination complaints; that each of
Contractor's Requests for Admissions would be considered denied;
that Contractor's Motion to Compel would be denied; that
Contractor's Cross-Claim was dismissed and the Notice of
Depositions was again quashed.
On February 18, 1986, Contractor responded to DOL's Request
for Admissions.
At the appointed time for the hearing on February 19, 1986,
Contractor and DOL representative appeared. A continuance was
ordered for the express purpose of granting Contractor additional
time to seek counsel. The hearing was rescheduled for March 25,
1986.
On February 21, 1986, John Lehman, Admiral Robert Phillips
and Terrence Willingham of the Department of the Navy filed a
Motion for Protective Order, or in the Alternative, Motion to
Dismiss, in response to Contractor's Notice of Deposition. I
found this Motion to be moot, on February 26, 1986, since I
had previously ordered Contractor's Notice of Depositions to
be quashed.
On February 25, 1986, Contractor filed Plaintiff's [sic]
Request for Admissions and Notice of Deposition. DOL responded
by letter on February 26, 1986, denying Contractor's Request
for Admissions and moving that the Notice of Deposition be
quashed. DOL offered to have John Glyder, a Compliance Officer
employed by DOL's Wage and Hour Division, available for a
deposition on March 7, 1986, as requested by Contractor.
I issued an Order on March 5, 1986, to the effect that
the Notice of Deposition would again be quashed, with the exception
of the deposition of Mr. Glyder. However, Mr. Glyder's deposition
was never taken by Contractor because Contractor failed to follow
through with the necessary arrangements. Counsel for DOL stated
that Reverend Sparrow had been advised that he must arrange for a
court reporter for the deposition of Mr. Glyder. (T. 18) Counsel
called Reverend Sparrow the day before the deposition was to be
held. Reverend Sparrow refused to state whether a court reporter
had been retained. (T. 19) The deposition was not held. [3]
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[4] On March 7, 1986, Contractor filed an Interlocutory Appeal, in
which he requested a stay of the proceedings. DOL filed an
Opposition to the Appeal. I denied Contractor's request to stay the
proceedings on March 15, 1986.
Nevertheless, Contractor filed an Interlocutory Appeal with
the Wage Appeals Board. On March 18, 1986, the Wage Appeals Board
issued a Denial of Contractor's Request for an Interlocutory Decree
on the basis that a final decision had not been rendered by the
Administrative Law Judge.
A hearing was held on March 25, 1986. At the beginning of the
hearing, I asked Reverend Sparrow if he had obtained counsel to
represent him. He responded that he had not and began a lengthy
speech which included, among other things, allegations that I had
no jurisdiction over the church or God, that racism and Communism
were unresolved factors in this case, that he was being intimidated
and harassed, and that he was ill because of it. /FN1/ (T. 4-8) He
stated that he was leaving to go to a doctor. (T. 9) I advised
Reverend Sparrow that he was leaving at his own risk and that under
the circumstances the hearing would proceed in his absence. (T. 9)
Reverend Sparrow left the hearing room at this point. I indicated
for the record that Reverend Sparrow had not produced a doctor's
certificate and that I found his credibility to be lacking. /FN2/
(T. 19) The hearing proceeded in Reverend Sparrow's absence.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
In November 1980, the District of Columbia accepted
Contractor's bids to provide surface preparation and exterior
painting at Turner Elementary, Brightwood, and Harrison Schools.
(Exh. A) Each contract entered into by the parties contained the
representations and stipulations required by the Act and the
applicable regulations. (Exh. A) The contracts also contained
schedules showing the basic hourly wages and fringe benefits to be
paid various classifications of employees. (Exh. A) (T. 21-24) The
contracts entered into are identified as numbers 0492-AA-04-1-0-CC,
0483-AA-04-1-0-CC and 0491-AA-04-1-0-CC. [4]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
/FN1/ To the extent Contractor has raised the First Amendment of
the U.S. Constitution as a defense in this proceeding, it is
preserved for determination on appeal.
/FN2/ The record of this case reflects continual attempts by
Reverend Sparrow to delay and obstruct the completion of the
proceeding. It took more than three years for this case to
come to hearing after the filing of the complaint. [4]
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[5] In June 1981, John Glyder, DOL's Wage and Hour Division
Compliance Officer, commenced a labor standards investigation
of Contractor's compliance with the Act and regulations.
(T. 21 ) As a result of the investigation, Mr. Glyder concluded
that Contractor owed $7,365.52 in back wages. (Exh. C, D, E)
As noted previously, Contractor asserted an independent
contractor defense. He contended that the workers he had
hired were independent contractors.
Section 276a of the Act provides in part:
. . . every contract based upon these
specifications shall contain a stipulation that
the contractor or his subcontractor shall pay all
mechanics and laborers employed directly upon
the site of the work, unconditionally and not
less often than once a week, and without
subsequent deduction or rebate on any account,
the full amounts accrued at time of payment,
computed at wage rates not less than those
stated in the advertised specifications,
regardless of any contractual relationship
which may be alleged to exist between the
contractor or subcontractor and such laborers
and mechanics. . . .
29 C.F.R. [sec] 5.2 provides in part:
(i) Every person paid by a contractor or
subcontractor in any manner for his labor
in the construction, prosecution, completion,
or repair of a public building or public work,
or building or work financed in whole or in
part by loans, grants, or guarantees from the
United States, is "employed" and receiving
"wages", regardless of any contractual
relationship alleged to exist.
The evidence in this case indicates an employment relationship
rather than an independent or subcontractor relationship. The
distinction at common law between the two categories of workers
focuses on the right to control the work and the result. Spirides
v. Reinhardt, 613 F.2d 826 (D.C. Cir. 1979). The Supreme Court gave
a different interpretation in social legislation, stating that:
"[I]n the application of social legislation employees are those who
as a matter of economic reality are dependent upon the business to
which they render service." Bartels v. Birmingham, 332 U.S. 126,
130 (1947). [5]
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[6] The application of either test results in the conclusion
that workers in the case sub judice were employees rather than
subcontractors. It is apparent from the evidence that Contractor
assumed the right to control the work. Though testimony indicated
that Reverend Sparrow did not actually supervise the work (T.
53-54), he did retain the right to do so. He lists himself as
supervisor on the weekly payroll statements. (Exh. B) These
documents also show an hourly wage rate and number of hours worked.
Contractor's policy statement requires "a daily part-time (maximum
4 hour) contract," one unit of work per hour; no purchase of
materials without prior approval of Contractor; and no Saturday or
Sunday work. (Exh. K) With regard to the economic reality test,
there is no evidence that those working for Contractor were working
for other businesses. In fact, Contractor's policy statement seems
to discourage other employment. Participants must be unemployed,
the Contractor states, and "[e]mployees/contractors are not
allowed to engage in any contract with any person without
SBC's [Contractor's] written approval. . . ." (Exh. K)
I conclude from Contractor's assumed right to control
the work and the workers, as well as the participant's economic
dependence on Contractor, that the relationship was one of
employment rather than independent subcontractor.
Calculations
John Glyder, DOL's Wage and Hour Division Compliance Officer,
testified at the hearing. His investigation revealed that
Contractor had failed to pay a number of workers the applicable
wage rate of $14.54 per hour for the work performed, in accordance
with DOL's Wage Decision No. DC 80-3040. (T. 33-34, Exh. A)
Contractor's certified payrolls showed on their face that there
were underpayments. (Exh. B; T. 33) In the course of his
investigation, Mr. Glyder secured information regarding Joseph
Carter, Johnny Lane, Herman Threats and Henry Ponder, establishing
their hours worked and wages paid. This information also
established prevailing wage underpayments and demonstrated that
Contractor's certified payrolls were inaccurate. (T. 34) These four
workers provided pay stubs and personal records in support of their
testimony at the hearing. (Exhs. F, G, H, I) Underpayments for
Joseph Carter, Johnny Lane, Herman Threats and Henry Ponder were
computed from the hours they actually worked and their rate of pay
and comparing the wages actually received to the wages required to
be paid. With respect to the remaining employees, prevailing wage
computations were based on the information set forth on
Contractor's certified payrolls and the correct prevailing wage
rate required to be paid such employees. (Exhs. C, D, E)[6]
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[7] The summaries of unpaid wages completed by Mr. Glyder are as
follows:
Turner School
Employee Date Employed Amount Due
Joseph Carter 12/10/80-4/1/81 $ 473.45
Johnny Lane 12/10/80-4/1/81 473.45
Bernard Bradford 1/28/81-2/27/81 6.48
Herman Davis 1/28/81-3/7/81 76.68
J. Johnson 1/30/81-2/21/81 10.80
R. Piper 1/28/81-2/28/81 21.72
Henry Ponder 11/80-3/81 943.92
TOTAL $2, 006.50
(Exh. C)
Brightwood School
Employee Date Employed Amount Due
Joseph Carter 12/10/80-4/1/81 $1,214.49
Johnny Lane 12/10/80-4/1/81 1,214.49
Herman Threats 12/13/80-1/23/81 9.24
Bernard Bradford 1/23/81-1/23/81 14.16
F. Bradford, Jr. 12/6/80-12/6/80 40.66
F. Bradford, Sr. 12/6/80-12/6/80 24.64
Bryant 11/14/80-11/14/80 26.18
Sam Cook 12/13/80-12/13/80 32.34
Herman Davis 11/14/80-5/4/80 220.78
M. Franklin 12/13/80-12/13/80 12.34
Freddie Jacobs 11/14/80-11/14/80 12.32
L. Jacobs 11/14/80-11/14/80 48.32
J . Johnson 2/9/81-2/9/81 1.62
R. Piper 1/23/81-1/23/81 31.86
Henry Ponder 11/80-3/81 666.54
TOTAL $3,589.98
(Exh. D)[7]
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[8] Harrison School
Employee Date Employed Amount Due
Joseph Carter 12/10/80-4/10/81 $ 370.52
Johnny Lane 12/10/80-4/10/81 370.52
Herman Threats 3/12/81-4/3/81 886.94
Bernard Bradford 1/23/81-1/23/81 38.94
Herman Davis 1/23/81-5/8/81 19.98
Freddie Jacobs 3/20/81-3/27/81 14.04
L. Jacobs 3/20/81-3/20/81 10.26
R. Piper 1/23/81-1/23/81 38.94
R. Prather 3/20/81-3/27/81 13.50
F. Bradford 3/20/81-3/20/81 5.40
TOTAL $1,769.04
(Exh. E)
Based on the evidence, I conclude that:
1. The above-captioned contracts are subject to the
Davis-Bacon Act, 40 U.S.C. [secs] 276a et seq., and the regulations
thereunder, 29 C.F.R. Part 5.
2. The above-captioned Contractor is a contractor within the
meaning of the Davis-Bacon Act and regulations and the individuals
named on the attached Schedule A performed work under these
contracts and are laborers or mechanics within the meaning of the
Davis-Bacon Act and regulations.
3. The Contractor violated the Davis-Bacon Act and
regulations by failing to pay workers the required prevailing
wage rates for the classification of work performed, as set forth
on the Department of Labor's Wage Decision No. DC 80-3040, as
amended, for all hours worked under the contracts.
4. The Department of Labor has submitted accurate and
reliable computations substantiating wages due to each worker.
Inasmuch as the Contractor has failed to negate the Department
of Labor's findings, the Department of Labor has established
the amounts of the wage underpayments as a matter of just and
reasonable inference. See Anderson v. Mt. Clemens Pottery
Company, 328 U.S. 680 (1945). [8]
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[9] 5. In accordance with the Department of Labor's calculations,
the Contractor is liable for back wages totalling $7,365.52 to the
individuals named and in the amounts set forth on the attached
Schedule A.
ORDER
It is hereby ORDERED that back wages totalling $7,365.52
be distributed as set forth in Schedule A (attached).
DAVID A. CLARKE, JR.
Administrative Law Judge
Dated: 13 MAY 1986
Washington, D.C.
[86-18.ALJ ATTACHMENT]
SCHEDULE A
Joseph Carter $2,058.46
Johnny Lane 2,058.46
Herman Threats 896.18
Bernard Bradford 59.58
F. Bradford, Jr. 40.66
F. Bradford, Sr. 30.04
Williams Bryant 26.18
Sam Cook 32.34
Herman Davis 317.44
M. Franklin 32.34
Freddie Jacobs 26.36
L. Jacobs 58.58
J. Johnson 12.42
R. Piper 92.52
Henry Ponder 1,610.46
R. Prather 13:50
TOTAL $7,365.52
