PERMIS CONSTRUCTION CORP., 1985-DBA-102 (ALJ Oct. 22, 1987)
[1] [87-55&56.WAB ATTACHMENT 1 OF 2]
U.S. Department of Labor Office of Administrative Law Judges
2600 Mt. Ephraim Avenue
Camden, New Jersey 08104
DATE: OCTOBER 22, 1987
CASE NO. 85-DBA-102
IN THE MATTER OF
Disputes concerning the payment of
prevailing wage rates and overtime
pay by:
PERMIS CONSTRUCTION CORP.
Prime Contractor
and
TRATAROS CONSTRUCTION CORP.
Prime Contractor
With respect to laborers and
mechanics employed by their
subcontractor Future Construction
Corporation under U.S. Dept. of the
Army Contract Nos. DACA-51-82-C-0246,
and DABT-35-83-C-0143 (Fort Dix,
New Jersey).
DEFAULT
DECISION AND ORDER
AS TO
TRATAROS CONSTRUCTION CORP.
This matter having been scheduled for hearing on September 28,
1987 by Notice of Hearing dated July 31, 1987, and
Respondent, Trataros Construction Corp. (hereinafter
"Respondent"), not having appeared at such time and place noticed
for hearing, and Respondent not having, prior to such time of
hearing, shown good cause as to why such appearance was not made,
and
Upon motion therefor made at such hearing by the representative
of the Office of Solicitor, U.S. Department of Labor, the
following findings, conclusions and order thereon are hereby
entered, pursuant to 29 C.F.R. 18.39(b) and 18.5(b): [1][2]
FINDINGS OF FACT
1. On January 28, 1983, Respondent, as Prime Contractor,
entered into Contract #DABT 35-83-C-0143 with the U.S. Department
of the Army for the installation of windows in army barracks at
Fort Dix, New Jersey.
2. In connection with such contract, Respondent, as Prime
Contractor, entered into a subcontract with Future Construction
Corp. of Levittown, Pennsylvania (hereinafter "Future").
3. Pursuant to the Davis-Bacon Act, 40 U.S.C. Section 276 et
seq., the Contract Work Hours and Safety Standards Act, 40 U.S.C.
Section 327 et seq., and the applicable regulations issued
thereunder at 29 C.F.R. Part 5, included in the specifications of
such contract was the requirement that Future pay the various
classes of laborers and mechanics employed on these projects the
full amounts earned, computed at wage rates of not less than those
determined by the Secretary of Labor and included in the contracts
for the various classes of laborers and mechanics, and pay its
laborers and mechanics overtime compensation of not less than one
and one-half times their basic rate of pay for all hours worked on
the projects in excess of eight per day and forty per week.
Moreover, Future was required by sections 5.5(a)(3)(ii) of
Regulations, Part 5, to submit weekly a certified copy of all
payrolls to the contracting agency, via the prime contractors, the
certification to affirm that the payrolls were correct and
complete, that the wage rates contained there[i]n were not less
than those determined by the Secretary of Labor, and that the
classification set forth for each laborer and mechanic conformed to
the work performed. These requirements were included in the
specifications of the contracts, and George C. Doran, as President
of Future, acknowledged their inclusion in the subcontracts.
4. Future did not properly classify most of its employees and,
accordingly, did not pay those employees the applicable prevailing
wage rates for the classifications of work they performed on the
project sites. Wage Decision No. NJ81-3063, including Modification
Nos. 1 through 9 required Future to pay its carpenters and laborers
hourly rates (including fringe benefits) of $18.54 and $13.10,
respectively. Some of Future's employees who performed carpenters'
work for 65% of their hours worked on the projects were,
nevertheless, classified as laborers for all of their hours worked
and paid the laborers' rate of $13.10 per hour or they were paid a
lower hourly rate of $12.45 with no additional fringe benefits.
Some employees who performed the carpenters' work were not listed
on Future's certified payroll records. Instead, these employees
were shown on Future's regular payrolls as "trainees," and they
were paid $7.00 per hour with no fringe benefits. Other employees
of Future who performed laborers' work were also omitted from the
certified payrolls and, instead, were listed on Future's regular
payroll records as "clean up" employees. Future paid these
employees hourly rates of $4.00 and $5.49, with no fringe benefits.
Furthermore, Future did not pay its employees any wages for some of
the weeks they worked on these projects, and it paid them only a
part of their wages for the hours they worked in other weeks. [2]
[3] 5. The certified payroll records which Future submitted to
the U.S. Department of the Army were inaccurate and incomplete.
They did not contain the names of all employees who worked on the
project sites. The certified payrolls indicated that employees had
been paid the full wages shown thereon when, actually, Future had
paid them no wages in certain weeks and had paid them only a part
of the wages owed them in other workweeks. George C. Doran
certified, as President of Future, that the payroll records were
complete and accurate.
6. Back wages computed for the prevailing wage and overtime
are in the total amount of $154,193.03 due 113 employees.
7. Respondent has paid $65,347.29 of said back wages, leaving
a balance of $88,845.74.
CONCLUSIONS OF LAW
1. Section 5.5(a)(6) of Regulations, 29 C.F.R. Part 5,
provides that a prime contractor, is responsible for "compliance by
any subcontractor with all the contract clauses in 29 C.F.R. 5.5"
which includes the requirement to pay all laborers and mechanics in
accordance with the applicable prevailing wage and overtime
standards.
2. Future has failed to comply with the 29 C.F.R. 5.5 contract
clauses as noted above at Findings of Fact, resulting in unpaid
back wages of $88,845.74.
3. Pursuant to 29 C.F.R. Section 5.5(a)(6), Respondent is
responsible for payment of said unpaid back wages.
ORDER
Based upon the foregoing, Respondent, Trataros Construction
Corporation, is liable for the unpaid and outstanding back wages of
$88,845.74, and the funds presently withheld by the contracting
agency, to such extent of liability, shall be released to the
Department of Labor, Employment Standards Administration, to be
distributed by the Department of Labor to the affected employees.
RALPH A ROMANO
Administrative Law Judge
Camden, NJ [3]
