LA FORGE CONSTRUCTION CONTRACTING, INC., 1986-DBA-49 (ALJ Oct. 1, 1987)
CCASE:
LA FORGE CONSTRUCTION CONTRACTING, INC.
DDATE:
19871001
TTEXT:
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[1] [87-49.WAB ATTACHMENT]
U.S. Department of Labor Office of Administrative Law Judges
211 Main Street, Suite 600
San Francisco, California 94105
(415) 974-0514
FTS 8 454-0514
Case No. 86-DBA-49
Date: 01 OCT 1987
IN THE MATTER OF
DISPUTES CONCERNING THE PAYMENT OF
PREVAILING WAGE RATES AND OVERTIME BY:
LA FORGE CONSTRUCTION CONTRACTING, INC.,
Prime Contractor,
EMERSON CONSTRUCTION CO.,
Prime Contractor,
WILSON CONSTRUCTORS,
Prime Contractor,
CADDELL CONSTRUCTION CO.
Prime Contractor,
T.H. TAYLOR, INC.,
Prime Contractor,
THE HARRIS CORPORATION,
Prime Contractor,
KILLEEN ELECTRIC CO., INC.
Subcontractor,
DELORES SOLIS, President, Killeen Electric,
JOE SOLIS, Treasurer
Respondents
WITH RESPECT TO LABORERS AND MECHANICS
EMPLOYED BY THE SUBCONTRACTOR ON U.S.
ARMY CORPS OF ENGINEERS CONTRACT NOS.
DACA-56-83-C-0040, VANCE AFB, ENID,
OKLAHOMA; DACA-56-82-C-0032, KIRTLAND
AFB, ALBUQUERQUE, NEW MEXICO; DACA-6B-
83-C-0164, GOODFELLOW AFB, SAN ANGELO,
TEXAS: DACA-63-83-C-0043, FORT HOOD,
TEXAS; DACA-63-83-C-0059, REESE AFB,
TEXAS; AND ARMY AND AIR FORCE EXCHANGE
SERVICE CONTRACT NO. HQ-82-PRS-105,
FORT HOOD, TEXAS. [1]
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[2] Appearances: Joe L. Solis, Pro se
1202 Missouri
Killeen, Texas 76541
For Respondents Killeen Electric Co., Inc.
Joe Solis and Delores Solis
Bobbie Gannaway, Attorney
Anthony Parham, Attorney
Office of the Solicitor
525 Griffin, Suite 501
Dallas, Texas 75202
For the Department of Labor
Before: ALFRED LINDEMAN
Administrative Law Judge
DECISION AND RECOMMENDED ORDER
Procedural Background
This action arises under the Davis-Bacon Act, as amended, 40
U.S.C. [sec] 276a et seq., the Contract Work Hours and Safety
Standards Act, as amended ("CWHSS[A]"), 40 U.S.C. [sec] 327 et
seq., and the Copeland Act, as amended, 40 U.S.C. [sec] 276c. After
appropriate notice to interested parties a hearing was held in San
Antonio, Texas on February 25, 1987. /FN1/ At the hearing
respondent Joe Solis hereinafter "respondent" ) stated that he was
unable to obtain an attorney, although he was previously
represented by counsel, and asserted that he was unsure what the
"hearing was going to pertain to." (TR 4, 5, 297). I note,
however, that respondent requested the hearing, and received the
Secretary's prehearing report in June of 1986, Judge Halpern's
prehearing order, dated October 15, 1986, and all notices of
hearing; further, respondent conceded knowledge that the hearing
would go forth on February 25, 1987, and that he had received a
list of the employees involved. (TR 29-30). Under the
circumstances therefore, it was determined that respondent had [2]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
/FN1/ At the conclusion of the hearing the record was left open
for the deposition testimony of five witnesses (Tom Button, Alex
Jaramillo, Rigoberto Merino, William Baker, and Ron Bradford). (TR
352-53, 400, 420-23). On the appointed day for the depositions,
respondent opted not to depose Baker and Bradford. (See Merino
Depo., at 48). [2]
Throughout this decision "TR" denotes Transcript of the
February 25, 1987 Hearing; "GX" and "RX" denote Government's
Exhibits and Respondent's Exhibits, respectively. [2] [END FN1]
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[3] sufficient notice to proceed on the date set for the hearing.
The issues for adjudication are: whether respondent violated
the named Acts by misclassifying and failing to properly
compensate certain employees, by submitting certified payroll
records which falsely reflected compliance, by requiring
"kickbacks," and whether, as a result, Killeen Electric Co., Inc.
and both Solis respondents should be debarred from further
government contracts for a period of three years. See Department
of Labor ("DOL") Prehearing Report, dated June 5, 1986, at 2-3.
Pending Motions
On April 17, 1987, respondent filed a "Motion to Amendment to
the Pleadings." DOL filed a response on April 30, 1987. Despite
the title of this motion, it is actually an attempt to introduce
new evidence (see items submitted as RX 44-57). Under the
applicable rules of procedure, the record is closed at the
conclusion of the hearing unless the administrative law judge
directs otherwise. 29 C.F.R. [sec] 18.54(a). The record in this
case closed February 25, 1987, except for the provision for
specified post-hearing depositions and the receipt of the
deposition transcripts. The rule also provides that "[o]nce the
record is closed, no additional evidence shall be accepted into the
record except upon a showing that new and material evidence has
become available which was not readily available prior to the
closing of the record." 29 C.F.R. [sec] 18.54(c). Of the
proffered evidence, I find that only RX 44 was arguably not readily
available prior to the close of the record. RX 44 is a signed and
sworn statement made by Ludgerio Vasquez on April 10, 1987. I find
that because of the content of the statement, disputing key
elements of the claim against respondent, this document is
material. There is no showing that the remainder of the submitted
evidence was unavailable prior to the hearing. For example,
respondent attempts to submit into evidence copies of payroll
checks which were issued in October of 1984 and correspondence from
the same period. Respondent has made no showing that he was
somehow prevented from submitting these documents in a timely
fashion. Based on the foregoing, the proffered RX 44 will be
admitted into evidence; however, the weight of this evidence will
be determined separately. The other proffered documents, RX 45-57,
are excluded.
On May 12, 1987, respondent submitted an "Amendment to Motion
of Production of Documents." Respondent's original Motion for
Production of Documents was denied on April 27, 1987. Since a copy
of the May 12 filing was not served on the Secretary, this office
forwarded a copy to the Solicitor's Office on June 2, 1987. The
Department of Labor's reply was received on June 15, 1987. The
amended motion requests the DOL "Personal Interview Statements,"
copies of the deposition transcripts, and copies of the hearing
transcript, all of which [*] post-hearing [*] discovery was
previously [3]
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[4] denied on April 27, 1987. The amended motion does not raise any new
or compelling arguments that would persuade me to reconsider my earlier
determination. The "Amendment to Motion of Production of Documents" is
therefore denied.
Findings of Fact and Conclusions of Law
Findings of Fact
A. The LaForge Construction Contract (Enid, Oklahoma)
1. LaForge Construction Contracting, Inc., the general
contractor, was awarded Contract No. DACA56-83-C-0040 on
September 2, 1983, by the United States Army Corps of Engineers to
construct unaccompanied officer personnel housing at Vance Air
Force Base, Enid, Oklahoma. (GX 2a and 2b).
2. On August 30, 1983, LaForge Construction Contracting,
Inc., awarded to Killeen Electric Company, Inc., a subcontract to
perform electrical work at Vance Air Force Base on Contract No.
DACA56-83-C-0040. (GX 2d).
3. Included within the terms of Contract No.
DACA56-83-C-0040 were Wage Decision Nos. OK83-4012 and OK83-4031.
(GX 2c).
4. Killeen Electric Company, Inc. installed electrical
systems and component parts within buildings at Vance Air Force
Base. (Respondent's Proposed Findings, #4; GX 2d).
5. Vance Air Force Base is located in Garfield County,
Oklahoma and denoted as Area-I on the Wage Decision. (TR 47).
6. Vance Air Force Base is located within 12 miles of the
downtown Enid Post Office and is denoted as Zone-I. Id.)
7. The Wage Decision at GX 2c, p.2, for Electrician's Area-I
and Zone-I has been modified as appears in GX 2c, p.6.
8. The base wage rate for electricians for Vance Air Force
Base, Enid, Oklahoma, for Contract No. DACA56-83-C-0040 was $15.60
per hour and was set forth in the modification of Wage Decision
No. OK83-4012, effective February 18, 1983. (GX 2c, p.6).
9. The fringe benefit wage rate for electricians for Vance
Air Force Base, Enid, Oklahoma, was 9% of the base rate of $15.60
per hour in addition to $1.05 for a total fringe benefit of $2.45
per hour and was set forth in the modification of Wage Decision
No. OK83-4012, effective February 18, 1983. (GX 2c, p.6). [4]
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[5] 10. On Certified Payroll No. 5, Killeen Electric Co., Inc.
recorded that OK83-4012 applied to Contract No. DACA56-83-C-0040 .
(GX 14, Payroll #5; TR 49 ).
11. Bill Bush was classified by Killeen Electric Co., Inc.,
on its payroll records as an "outside electrician." (GX 14, Payroll
# 13; TR 50). The payroll records show that he worked 273 hours and
was paid $14.05 per hour on Contract No. DACA56-83-C-0040. (GX 14,
TR 51). I find that Bill Bush performed electrician work.
(TR 143).
12. Mike Donolin was classified on Killeen Electric Co.,
Inc.'s payroll records as a laborer, except that for three hours in
the week ending May 31, 1984, he was classified as an electrician.
(GX 14, TR 52). He was paid $5.00 per hour for the vast majority
of the hours he worked on Contract No. DACA56-83-C-0040. (GX 14:
TR 54). I find that he performed electrical laborer's duties while
in working on Contract No. DACA56-83-C-0040. (TR 56-57).
13. An Area 2, group-I laborer should have been paid $8.95
per hour plus an additional $l.00 per hour for fringe benefits for
a total of $9.95 per hour pursuant to Wage Decision No. OK83-4012.
(GX 2c, p.2; TR 53).
14. An area-2, group-II laborer should have been paid $9.20
per hour and $1.00 per hour for fringe benefits for a total of
$10.20 per hour. (GX 2c, p.2; TR 53).
15. Brian Johnson was classified as a laborer on Killeen
Electric Co., Inc.'s Certified Payroll records. (GX 14, Payroll
#31; TR 57).
16. Ronnie Plato was classified as a laborer on Killeen
Electric Co., Inc.'s Certified Payroll records. (GX 1-4; TR 60).
17. Troy Veeder was classified as a laborer and, for three
hours, as an electrician on Killeen Electric Co., Inc.'s Certified
Payroll records. (GX 14, Payroll #26; TR 62). He was paid $5.00
per hour, $5.00 per hour, and $9.95 for some hours. (TR 62). The
Certified Payroll records indicate Troy Veeder was paid according
to OK83-4012 Wage Determination. (GX 14). He was classified as a
laborer and electrician in the same work week. (TR 63). I find
that he was performing the electrical work of an electrician ten
percent of his Killeen employment time (TR 64), and that he spent
40 percent of his time performing group-II laborer work duties.
(Id.).
18. Billy Smith was paid $8.00 per hour his last week of work
while classified as a registered electrician apprentice. (TR 65). [5]
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[6] 19. Juan Manuel Juarez used the alias name of Antonio
Gutierrez while employed by Killeen Electric Co., Inc.
(TR 173-174). He performed electrician's work (TR 177-178), and
worked at least 60 hours per week on Contract DACA56-83-C-0040
(TR 203). Based on the totality of the evidence, including
testimony and the signatures bearing the name "Antonio Gutierrez,"
I credit the testimony of Juan Manual Juarez over that of Joe Solis
and I find that Juarez was paid $200.00 a week for his labor on the
subject Contract (TR 179), that Killeen Electric Co., Inc.'s
payroll records carried the name Antonio Gutierrez classified as an
electrician (GX 14, Payroll #32; TR 71), and that the payroll
records indicate that Wage Decision No. OK83-C-4012 applied to its
work with Antonio Gutierrez. (GX 14, Payroll #32; TR 71).
20. David Tanner worked as an electrician for 25 hours on
Contract No. DACA56-83-C-0040 for which he was partially paid.
(TR 72-73; 214-16, 228-29, 235; GX 7, p.13). Joyce Tanner worked
as an electrician for 25 hours on Contract No. DACA56-83-C-0040 for
which she was partially paid. (TR 72-73, 215, 228-29, 235; GX 7,
p.14). David and Joyce Tanner did not operate an electrical
business out of their home before or after doing business with
Killeen Electric Co., Inc. (TR 226-27).
21. Antonio Lucio worked 137.5 hours doing electrician's work
and he performed 30 overtime hours for which Killeen Electric Co.,
Inc. did not properly pay him. (GX 15; TR 77).
22. Roger Warren worked for 105 hours as an electrician for
Killeen Electric Co., Inc. for which he was paid $14.05 an hour.
(GX 7, p.18; GX 14).
B. The Emerson, T. H. Taylor, Caddell, and Wilson Construction
Contracts (Texas and New Mexico)
1. Emerson Construction Co., Inc., the general contractor,
entered into a contract to construct various new building additions
at Fort Hood, Bell County, Texas, with the United States Army Corps
of Engineers, under Contract No. HQ82-PRS-105. (GX 5a).
2. Killeen Electric Co., Inc., entered into a subcontract to
perform electrical work on Contract No. HQ82-PRS-105 with Emerson
Construction Co., Inc. (GX 5b).
3. T. H. Taylor, Inc., the general contractor, was awarded
Contract No. DACA63-83-C-0043 on December 29, 1982, by the United
States Army Corps of Engineers to construct a hangar with shops at
Fort Hood Army Base, Texas. (GX 1b).
4. On February 1, 1983, T. H. Taylor, Inc., awarded to
Killeen Electric Co., Inc., a subcontract to perform electrical
work at Fort Hood on Contract No. DACA63-83-C-0043. (GX 1d). [6]
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[7] 5. Caddell Construction Co., Inc., the general contractor,
was awarded Contract No. DACA63-83-C-0164 by the United States Army
Corps of Engineers to construct Unaccompanied Enlisted Personnel
Housing at Goodfellow Air Force Base, San Angelo, Texas. (GX 4b).
6. On July 15, 1983, Caddell Construction Co., Inc., awarded
to Killeen Electric Co., Inc., a subcontract to perform electrical
work at Goodfellow Air Force Base, San Angelo, Texas. (GX 4d).
7. Wilson Constructors, Inc., the general contractor, was
awarded Contract No. DACA63-82-C-0209 on July 27, 1982 by the
United States Army Corps of Engineers to construct an ADAL Data
Auto Facility at Kirtland Air Force Base, Albuquerque, New Mexico.
(GX 6a).
8. Kenneth Ray Wiley was employed by Killeen Electric Co.,
Inc. as an electrician on the PX construction project for the
United States Government at Fort Hood, Texas, Contract No.
HQ82-PRS-105, on which Emerson was the prime contractor. (GX 18;
TR 300-310). He was also employed by Killeen Electric Co., Inc. as
an electrician in the barracks remodeling project on which Harris
Construction was the prime contractor for the United States
Government in Lubbock, Texas. (TR 309-312). I find that he was
paid $17.77 per hour by checks drafted by Killeen Electric Co.,
Inc. (GX 18; TR 303), and that he was forced by Killeen Electric
Co., Inc. to return one-half of all his wages to Killeen Electric
Co., Inc. (TR 303-305).
9. Humberto Gonzales Ibarra was forced by Killeen Electric
Co., Inc. to return all but $150.00, or about $5.00 per hour, of
his wages (TR 363-365), for performing electrician work, utilizing
the tools of that trade, on a United States Government construction
project on which Emerson Construction Co. was the prime contractor
on Contract No. HQ82-PRS-105. (TR 369, 357). Ibarra was classified
by Killeen Electric Co., Inc. as an electrician from the date of
his initial employment on August 11, 1983 (payroll number 41)
through the date when he demanded that the payroll records be
corrected to reflect his time wage receipts on December 29, 1983
(payroll number 61). (GX 18; TR 373-375).
10. Jose Ramon Guzman worked for Killeen Electric Co., Inc.
from May 13, 1983, until mid-1984 performing electrical work for
government Contract No. HQ82-PRS-105. (GX 21). I find that he was
forced by Killeen Electric Co., Inc. to return his fringe benefit
payments and monies for hours worked in the amount of $3,500.00 on
United States Government Contract No. HQ82-PRS-105. (GX 21).
11. Roger Snider worked for Killeen Electric Co., Inc. during
the summer of 1983 as a journeyman electrician on Contract No.
HQ82-PRS-105. (GX 22). He was forced by Killeen Electric Co.,
Inc. to return monies for hours worked in the amount of $700.00 on
United States Government Contract No. HQ82-PRS-105. (GX 22 and
EX 10, p.1). [7]
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[8] 12. Mike Hydrick returned to Killeen Electric Co., Inc.
$50.84 in wages for work on United States Government Contract No.
DACA63-82-C-0209 on which Wilson Constructors, Inc. was the prime
contractor. (TR 294; GX 11, 23).
13. Gene Diaz was forced by Killeen Electric Co., Inc. to
return $586.20 in wages on United States Government Contract No.
DACA83-C-0164 in which Caddell Construction Co., Inc. was the prime
contractor. (GX 24 and GX 10, p.3).
14. Kenneth Ray Wiley worked as a journeyman electrician on
United States Government contract No. DACA63-83-C-0043 on which
T.H. Taylor, Inc. was the prime contractor and was forced by
Killeen Electric Co., Inc. to return $8,228.00 of his wages. (TR
303; GX 13).
15. Tim Green worked for Killeen Electric Co., Inc., on
Contract No. DACA~3-82-0209 on which Wilson Construction, Inc. was
the prime contractor, and was forced by Killeen Electric Co., Inc.
to return $161.92 of his wages. (GX 11).
16. Michael Hernandez worked for Killeen Electric Co., Inc.
on Contract No. HQ82-PRS-105 on which Emerson Construction Co.,
Inc. was the prime contractor and was forced by Killeen Electric
Co., Inc. to return $185.50 of his wages. (GX 10)
C. The Harris Construction Contract (Lubbock, Texas)
1. The Harris Corporation, the general contractor, was
awarded Contract No. DACA63-83-C-0059 on January 17, 1983, by the
United States Corps of Engineers to make alterations to
unaccompanied Enlisted Personnel Housing at Reese Air Force Base,
Lubbock, Texas (GX 3b).
2. On March 5, 1983, the Harris Corporation awarded to
Killeen Electric Co., Inc., a subcontractor, to perform electrical
work at Reese Air Force Base, Lubbock, Texas on Contract No.
DACA63-83-C-0059. (GX 3d).
3. Killeen Electric Co., Inc. conceded that it failed to pay
the following employees fringe benefits for the indicated amounts
for their work on Contract No. DACA63-83-C-0059:
Frederick M. Baker $37.08
Alex Jaramillo $27.81
Robert Ortiz $16.92
Joe Salaza $20.53
Ludgerio Vasquez $18.52
Ken Wiley $10.19
(Button Depo., at 53-54).[8]
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[9] 4. Debra Baker was performing electrical work on Contract
No. DACA63-83-0059 on August 22, 1984, by herself. (Button Depo.,
at 14). She was classified as an electrician apprentice on Killeen
Electric Co., Inc.'s certified payroll records on Contract No.
DACA63-83-C-0059. (Id.; GX 26). She was paid an electrical
apprentice wage rate of $7.44 per hour on August 22, 1984 for work
on Contract No. DACA63-83-C-0059. (GX 26; Button Depo., at 37).
5. Rigoberto Merino reported to work each morning at 8:00
a.m. and worked until 4:30 p.m. and took 1/2 hour for lunch on
Contract No. DACA63-83-C-0059. (Merino Depo., at 24). He was paid
a $7.31 base rate and $0.57 per hour in fringe benefits for all
hours worked from August 10, 1983, through May 1984. (GX 26; Button
Depo., at 57). He was performing electrical work 50 percent of his
time from August 1983 through May 1984 on Contract No.
DACA63-83-C-0059. (GX 28; Merino Depo., at 14, 23, 47). I find
that he was not correctly paid his fringe benefits on Contract No.
DACA63-83-C-0059 (Button Depo., at 61; GX 26); that he was paid for
only 40 hours per week by Killeen Electric Co., Inc., for his work
on Contract No. DACA63-83-C-0059 (Button Depo., at 69; GX 26); that
he was not paid for 25 overtime hours and 25 hours of fringe
benefit pay while employed by Killeen Electric Co., Inc. on
Contract No. DACA63-83-C-0059 (Merino Depo., at 27-28); that he
worked one Sunday for eight hours for which he was not paid on
Contract No. DACA63-83-C-0059 (Merino Depo., at 27); that he worked
four Saturdays for eight hours for which he was paid for three
hours at straight time on Contract No. DACA63-83-C-0059 (Merino
Depo., at 26-28); and that he was underpaid $6,298.15. (GX 9, p.14;
Button Depo., at 65, 68).
6. Alex Jaramillo was not paid for 28 hours (one Sunday for
eight hours, one Sunday for four hours, and four Saturdays for four
hours) while employed by Killeen Electric Co., Inc. on Contract
No. DACA63-83-C-0059 (Jaramillo Depo., at 18-21). He was
classified as a journeyman electrician on Killeen Electric Co.,
Inc.'s Certified Payroll records for that Contract (GX 26; Button
Depo., at 72), and was paid for 40 hours per week for substantially
all weeks he worked on it (GX 26; Button Depo., at 72-73).
Conclusions of Law
A. The LaForge Construction Contract (Enid, Oklahoma)
1. Wage Decision No. OK83-4012 applies to the work Killeen
Electric Co., Inc.'s employees were performing on Contract No.
DACA56-83-C-0040.
2. Respondent violated the Davis Bacon and CWHSS Acts by
failing to pay each electrician employee of Killeen Electric Co.,
Inc., a total of $18.05 an hour while employed on Contract No.
DACA56-83-C-0040. [9]
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[10] 3. Wage Decision No. OK83-4031 does not apply to work on
Contract No. DACA56-83-C-0040.
4. Bill Bush should have been paid $18.05 per hour for 273
hours and he is owed $1,092.00.
5. Mike Donolin should have been paid $18.05 per hour for 60
hours and $9.95 per hour for 79 hours and he is owed $1,092.99 in
back wages for his hours worked on Contract No. DACA56-83-C-0040.
6. Brian Johnson should have been paid $9.95 per hour for all
hours worked and he is owed $51.98 for 10-1/2 hours he was
underpaid on Contract No. DACA56-83-C-0040.
7. Ronnie Plato should have been paid $9.95 per hour and he
is owed $22.28 for 4-1/2 hours he was underpaid on Contract No.
DACA56-83-C-0040.
8. Troy Veeder is owed $4,537.33 for work he performed on
Contract No. DACA56-83-C-0040 as an electrician and as a laborer.
9. Billy Smith is owed $49.92 for work performed on Contract
No. DACA56-83-C-0040 as a registered apprentice electrician.
10. Juan Manuel Juarez is owed $18,281.50 for 18 weeks of
electrical work performed on Contract No. DACA56-83-C-0040 for
which he was underpaid.
11. David Tanner and Joyce Tanner are owed $299.84 for work
performed on Contract No. DACA56-83-C-0040.
12. Antonio Lucio is owed $2,165.88 for work performed as an
electrician on Contract No. DACA56-83-C-0040.
13. Roger Warren is owed $42.00 for electrical work performed
on Contract No. DACA-56-83-C-0040 for which he was underpaid.
B. The Emerson, T.H. Taylor, Caddell, and Wilson Construction
Contracts (Texas and New Mexico)
1. Respondent violated the Copeland Act by failing to pay the
employees listed below the amounts required and by requiring
kickbacks on work performed on the named contracts.
2. Kenneth Ray Wiley is owed $2,772.00 for wages which he was
forced to pay back to Killeen Electric Co., Inc. during his
employment on Contract No. HQ82-PRS-105 on which Emerson
Construction Company was the prime contractor.
3. Humberto Gonzales Ibarra is owed $4,000.00 for wages which
he was forced to pay back to Killeen Electric Co., Inc. during his
employment on Contract No. HQ82-PRS-105 on which Emerson
Construction Company was the prime contractor. [10]
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[11] 4. Jose Ramon Guzman is owed $3,500.00 for wages which he was
forced to pay back to Killeen Electric Co., Inc. during his
employment on Contract No. HQ82-PRS-105 on which Emerson
Construction Company was the prime contractor.
5. Roger Snider is owed $700.00 for wages which he was forced
to pay back to Killeen Electric Co., Inc. during his employment on
U.S. Government construction contract No. HQ82-PRS-105 on which
Emerson Construction Company was the prime contractor.
6. Mike Hydrick is owed $50.84 for wages which he was forced
to pay back to Killeen Electric Co., Inc. during his employment on
Contract No. HQ82-PRS-105 on which Wilson Construction, Inc., was
the prime contractor.
7. Gene Diaz is owed $568.20 for wages which he was forced to
pay back to Killeen Electric Co., Inc. during his employment on
Contract No. DACA63-83-C-0164 on which Caddell Construction Co.,
Inc. was the prime contractor.
8. Kenneth Ray Wiley is owed $8,228.00 for wages which he was
forced to pay back to Killeen Electric Co., Inc. during his
employment on Contract No. DACA63-83-C-0043 on which T. H. Taylor,
Inc. was the prime contractor.
9. Tim Green is owed $161.92 for wages which he was forced to
pay back to Killeen Electric Co., Inc. during his employment on
Contract No. DACA63-82-C-0209 on which Wilson Constructors, Inc.
was the prime contractor.
10. Michael Hernandez is owed $185.50 for wages he was forced
to pay back to Killeen Electric Co., Inc. during his employment on
Contract No. HQ82-PRS-105 on which Emerson Construction Company,
Inc. was the prime contractor.
C. The Harris Corporation Construction Contract (Lubbock, Texas)
1. Respondent violated the Davis[-]Bacon and CWHSS Acts by
failing to pay the employees listed below the amounts required for
work performed on Contract No. DACA63-83-C-00059.
2. A journeyman electrician should have earned a base rate of
$14.85 per hour and $l.56 in fringe benefits on Contract No.
DACA63-83-C-0059.
3. Killeen Electric Co., Inc., owes the following individuals
the indicated amounts for their work on Contract No.
DACA63-83-C-0059:
Frederick M. Baker $37.08
Robert Ortiz 27.81
Joe Salazar 20.53 [11]
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[12] Ludgerio Vasquez 18.52 /FN2/
Ken Wiley 10.19
4. Wage Decision No. TX 82-4026 and modification 6 apply to
Contract No. DACA63-83-C-0059 and the work Killeen Electric Co.,
Inc. employees performed.
5. Debra Baker should have been paid the rate of a Journeyman
electrician for all the hours she worked on August 22, 1984, on the
subject Contract and is owed $58.96 in back wages.
6. Rigoberto Merino is owed $6,298.15 by Killeen Electric
Co., Inc. for fringe benefits and overtime work as a laborer and as
an electrician on the Contract.
7. Alex Jaramillo is owed $623.70 for 28 overtime hours at
1.5 times his base rate of $14.85 and $43.68 in fringe benefit pay
for those hours on the Contract.
D. Miscellaneous Conclusions
1. For all contracts which are the subject of this decision,
Killeen Electric Co., Inc. is covered by the Davis-Bacon Act,
Contract Work Hours and Safety Standards Act, and the Copeland
Act.
2. The aforesaid violations of the Davis-Bacon Act, the
Copeland Act, and the Contract Work Hours and Safety Standards Act
by Killeen Electric Co., Inc., Joel "Joe" Solis, and Delores Solis
were willful and aggravated.
3. Killeen Electric Co., Inc. and its successors, as well as
any corporation in which Joel "Joe" Solis or Delores Solis control
or have a substantial interest, should be debarred for a three year
period from the date of this decision.
4. All of the prime contractors listed as respondents in this
administrative hearing are responsible for payment of the amounts
owed by Killeen Electric Co., Inc. to its employees working on each
of the prime contractor's construction sites. [12]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
/FN2/ The signed statement by Ludgerio Vasquez, admitted as RX 44,
does not change any of these conclusions. When weighed against the
rest of the evidence, the document is insufficient to establish
that respondent did not commit the enumerated violations.
Furthermore, the statement does not negate the fact that Vasquez
was underpaid because respondent conceded that fact. (See Button
Depo., at 53). [12]
~13
[13] ORDER
It is therefore ordered that:
1. The contracting agencies shall release to the Wage and
Hour Division. U.S. Department of Labor, the sum of $54,940.08,
which shall be distributed in the amounts indicated to the
employees named in this decision. Any money not paid within three
years from the date of this Order because of inability to locate
employees or their refusal to accept it shall be covered into the
Treasury of the U.S. as miscellaneous receipts. Any amounts in
excess of $54,940.08 being withheld by the contracting agencies
shall be remitted to respondent Killeen Electric Co., Inc.
2. It is recommended that Killeen Electric Co., Inc., Joe
Solis, and Delores Solis should be subject to the ineligible list
provisions of the Davis Bacon Act.
ALFRED LINDEMAN
Administrative Law Judge
AL:mw [13]
