TRATAROS CONSTRUCTION CORP., 1985-DBA-78 (ALJ Nov. 6, 1987)
[1] [87-55&56.WAB ATTACHMENT 2 OF 2]
U.S. Department of Labor Office of Administrative Law Judges
John W. McCormack Post Office
and Courthouse
Room 409
Boston, Massachusetts 02109
Date: November 6, 1987
Case No. 85-DBA-78
IN THE MATTER OF
Disputes concerning the payment of
prevailing wage rates and overtime
by:
TRATAROS CONSTRUCTION CORP.,
Prime Contractor
H. P. CONNOR & CO., INC.
Subcontractor; and
ABARB HEATING & AIR CONDITIONING
Lower Tier Subcontractor,
With respect to laborers and mechanics
employed by Abarb Heating & Air
Conditioning on United States Department
of the Army Contract No. DACA-51-82-C-0144
Modernize Research & Development Building,
Fort Monmouth, New Jersey.
Appearances: Percy S. Miller, Esq.
For Complainant, U.S. Department of Labor
Chris Georgoulis, Esq.
For Respondent, Trataros Construction Corp.
Before: GEORGE PIERCE
Administrative Law Judge
DECISION AND ORDER
AWARDING BACK WAGES
As a result of an investigation conducted by the Wage and
Hour Division of the Employment Standards Administration, Abarb
Heating and Air Conditioning (hereinafter Abarb) was charged with
violation of the Davis-Bacon Act (hereinafter the "Act"). The
Wage and Hour Division computed $39,765.67 as being owed in back
wages by Abarb to 15 employees. Partial restitution in the
amount of $4,763.31 was made by H.P. Connor & Co., Inc., the
subcontractor. Pursuant to [sec] 5.11(b)(2) of the Act, Trataros
[1][2] Construction Corp., the Prime Contractor, requested a
hearing on the remaining $35,002.36 in back wages still at issue.
An Order of Reference was thereafter issued by the Assistant
Administrator referring this case to the Office of Administrative
Law Judges. A hearing was held in Trenton, New Jersey from June 2
through June 4, 1987, at which time all parties were afforded the
opportunity to submit evidence and argument.
Background of the Case
Respondent, Trataros Construction Corporation, was the prime
contractor on a project involving the modernization of the
Department of Army's Research and Development Building in Fort
Monmouth, New Jersey. Trataros subcontracted the heating,
ventilation and air conditioning (HVAC) portion of the project to
H.P. Connor and Company which, in turn, subcontracted out this
portion of the work to Abarb, the lower-tier subcontractor in
this case. Because the project was federally financed,
Respondents were obligated to comply with the Davis-Bacon Act and
other pay-related statutes in hiring and paying its employees who
worked at the R & D Building site.
Summary of the Evidence
Richard Galatro, a compliance specialist for the Wage and
Hour Division within the Department of Labor, testified on behalf
of the Complainant. Mr. Galatro, whose duties include
overseeing compliance with various federal labor statutes,
conducted the investigation which led to charges being filed
[against the] Respondent. This investigation, conducted from June
1983 through February 1984, concerned an alleged violation period
of October 1982 through November 1983. As part of this
investigation, Mr. Galatro: 1) reviewed Abarb certified payrolls
which were submitted either by the Corps of Engineers (SE
3A20-3A70) or H.P. Connors (SE 3A71-3A72); 2) examined cancelled
checks from Abarb; and 3) interviewed several employees who worked
on the project for Abarb during the audit period.
Mr. Galatro testified as follows regarding the Abarb
employees with whom he met during the course of the investigation.
Michael Arneman - was paid $10 per hour for a period of six weeks
beginning in early October 1983; was not paid
for work performed during the weeks ending
November 4 and 11, 1983; found to be performing
sheet metal worker's duties
Edward Black - fabricated and installed sheet metal duct
work; was paid $17.04 per hour. [2][3]
Jeff Christopher - hung metal duct, cut holes in ceilings, and
handled duct work using hand tools; was paid
$10 per hour.
Bob Dalkiewicz - hung sheet metal duct work, fabricated duct
work, and adjusted the ducts in the crawl
spaces; was paid $10 per hour.
Philip DeMarco - fabricated and hung sheet metal; was paid $10
per hour.
Charles Miles - fabricated and installed duct work; was paid
$10 per hour and, later, $11.85 per hour
Robert Miller - fabricated sheet metal duct work; was paid
$400 per week working a maximum of 37 1/2
hours a week.
Richard Reamer - hired as a sheet metal worker and worked
primarily with Mr. Joseph Napolitano in the
fabrication shop and mechanical rooms fabri-
cating and installing duct work; was paid
$11.85 for the first two to three weeks of
work and earned $18.25 per hour thereafter.
John Reuter - Performed various tasks at the work site,
including cutting holes in ceilings and
insulating already installed duct work; was
paid $10 per hour and $100 for every Saturday
worked, for a rate of $12.50 per hour.
Paul Ulyanov - hired as a sheet metal worker; may have done
some insulating; initial wage of $11.85 per
hour was subsequently raised to $18.25 per hour
Pursuant to his investigation, Mr. Galatro made the
determination that four employees -- Michael Arneman, Jeff
Christopher, John Reuter and Robert Miller -- worked on the
project but were not listed on Abarb's payroll. With the
exception of Mr. Miller -- who was witnessed working at the site
-- Mr. Galatro made this determination based solely upon
interviews with various employees. In addition to his finding
that the aforementioned employees were not listed on the payroll,
Mr. Galatro concluded that several employees had been paid wages
below that guaranteed under the Act. His conclusion that said
employees should be classified as sheet metal workers and paid
accordingly was based upon his conversations with area union
representatives and a review of collective bargaining agreements.
[3][4]
Five employees who worked for Abarb on the project testified
for Complainant. Peter Reuter, who began working on the project
on July 26, 1983, was hired by Wes Del Prete (who appears to have
been the supervisor of the HVAC work) as a laborer responsible
for bringing the duct work to the area at which it would be
installed. Mr. Reuter performed this task for three to four
weeks. In addition, during this period he also fabricated the
materials which he subsequently delivered to the installation
area. This work was performed in a workshop that was located in
the basement of the R & D Building. Mr. Reuter testified that,
in making the duct work, he utilized the Pittsburgh machine --
used to connect two direct pieces together, and the brake machine
-- used to form the duct work into various shapes. He read
blueprints and from them knew what size and shape was required
for the duct work.
After this three-to-four week period, Mr. Reuter began
installing duct work into the ceiling. He would put the duct
work to be installed on a dollie and thereby transport the duct
work from the basement to the room in which the duct work was
being installed. The duct work would then be lifted up into the
drop ceiling. Mr. Reuter would climb into the crawl space within
the ceiling and install the duct work. He performed these duties
on his own for approximately one week, installing the duct work
which was fabricated by Wes Del Prete. Thereafter, he was aided
in this installation process by Mark Goggins. Aside from
installing the duct work, Mr. Reuter and Mr. Goggins fabricated
duct work in the basement when Mr. Del Prete could not keep up
with the demand for the materials.
Mr. Reuter testified that, despite his understanding that
pay rate for a laborer was $12.85 an hour, he was paid $11.85
hour for the duration of his employment with Abarb. He had
previous experience in the construction industry and just prior
to working for Abarb had been head laborer on a construction
job. He did not, however, have any previous experience in sheet
metal work.
Mr. Reuter also testified that he witnessed his father, John
Reuter, insulating and assisting in the fabrication of duct
work. He also observed two other employees -- Richard Reamer and
an individual named Paul -- who fabricated and installed duct
work.
Mark Goggins worked for Abarb for two months beginning on
September 18, 1983. He met with Mr. Del Prete in the basement of
the R & D Building and was informed that he would be insulating
pipes and installing duct work. Mr. Goggins also recalls being
told by Mr. Del Prete that his hourly rate of pay would be
$11.72. [4][5]
After insulating pipes for approximately one week, Mr.
Goggins began fabricating duct work with Peter Reuter. In
addition to using power hand tools for this task, he utilized the
aforementioned machines located in the basement. After
fabricating the sheet metal into duct work, Mr. Goggins and Mr.
Reuter would install this duct work into the ceiling. He
estimated that he spent approximately 75% of the work day in the
crawl space. Because he and Mr. Reuter were basically
unsupervised -- Mr. Del Prete began showing up at the work site
less frequently as the job went along -- they had to make the
decision as to what type of duct work was needed and where it
should be installed. Mr. Goggins explained how this was
accomplished:
The holes were cut there and the pipe was
made to fit. Put an elbow on the end so that
it would go down. All the lines were the
same that we did and we didn't do any main
trunk. We did main trunk lines and then just
spurs off of that. Everything was basically
repetitious.
(TR-84)
Although Mr. Goggins had prior experience as a carpenter in
the construction industry, he had never before fabricated or
installed air conditioning duct work.
Tina Jaggers testified that, beginning April 5, 1983, she
worked one month for Abarb. She was contacted by Mr. Del Prete
who told her that he needed workers to insulate air conditioning
duct work. Prior to starting work, she had a conversation with
another man who she believed to be the foreman of the job but
whose name she does not recall. She did recall his telling her
that the other workers were being paid $10 an hour "under the
table." She responded that she wanted at least $11.85 an hour
and this request was accepted. Ms. Jaggers explained that in
order to insulate the duct work with fiberglass she needed to
first measure the duct work to be insulated and then cut the
fiberglass to fit that measurement. She would then go into the
ceiling, wrap the insulation around the duct work and then staple
it in place with a staple gun. In performing this task, Ms.
Jaggers usually worked alone.
During her second week on the job, in addition to insulating
Ms. Jaggers began working with sheet metal. Unlike some of the
other workers involved in the fabrication process, she did not
make any elbows and thus did not have to shape the sheet metal.
As such, she did not use the machines in the basement but instead
performed this job with a tape measure, utility knife, pliers and
a hammer. Her job, as she explained it, consisted of doing the
following: [5][6]
There would be some duct already running.
You know you have got to attach the same size
to that duct work. Take that down and find
that size sheet metal. Take those from
pieces of sheet metal and you hammer in these
slats to hook it together and then there is
wires that ran and clamps that clamped onto
the iron where you hang it from.
(TR 94)
During this phase of her employment, Ms. Jaggers worked with
another Abarb employee. This other employee, whose name Ms.
Jagger could not recall, would telephone Mr. Del Prete, who was
at that time in North Jersey, so as to know what work was to be
performed for that day.
Ms. Jaggers testified that she had never done HVAC work
before her employment with Abarb. Her most related prior work
experience consisted of employment as a mason laborer.
Joseph Napolitano was hired by Mr. Del Prete on April 16,
1983 to "work with the sheet metal men and put the duct work in,"
(TR 103) duties which he had never before performed. For two to
four months he worked as a "helper" on a crew, aiding the more
experienced workers in fabricating and installing duct work.
After this period his primary task consisted of insulating the
duct work with fiberglass. Occasionally he would assist in the
fabrication process by working on the machines in the basement.
He also observed Richard Reamer, Paul Ulyanov and Peter Reuter
fabricating duct work in the basement shop. After approximately
five months, Mr. Napolitano was laid off and then recalled to the
job by H.P. Connor & Company, for whom he returned to installing
duct work.
Mr. Napolitano testified that, when first hired, he never
discussed the rate of pay but was receiving $10 an hour. After
around eight months on the job, the rate of pay increased to
either $12 or $14 an hour. After being recalled to the job by
H.P. Connor, he began receiving $18.25 an hour.
Michael Arneman, who had been employed in the HVAC trade for
five years, worked the 4:30 to 10:00 night shift for Abarb as he
had a day time job installing air conditioning and heating
ducts. He began his work at Abarb by installing duct work with
co-employee Jeff Christopher, who also worked the night shift.
After two weeks, he and Mr. Christopher began fabricating the
duct work which they would thereafter install. They constructed
the duct work based upon a pattern left for them in the shop by
Mr. Del Prete, utilizing the Pittsburgh and brake machines -- [6]
[7] machines on which Mr. Arneman had worked in previous
employment. In addition to leaving the patterns for the design of
the duct work, Mr. Del Prete would leave notes signifying where the
duct work should next be installed. At this point in time, Mr. Del
Prete was at the work site between two to three times a week
during Mr. Arneman's shift. Another employee, named Paul,
reviewed the work of Mr. Arneman and Mr. Christopher on the
occasions that he was at the work site during the night shift.
After a period of six to eight weeks, Mr. Arneman began
insulating the duct work which he had previously installed. He
continued to fabricate and install duct work in addition to his
insulating duties.
Mr. Arneman testified that he was paid $10 an hour
throughout his employment with Abarb. No deductions were taken
from this pay.
Michael Ryan, a business agent for Sheet Metal Workers Local
Union #27 since 1979, testified that he considered the following
activities sheet metal work:
-- shaping and forming of duct work from sheet metal;
-- transporting sheet metal from one area of the
work site to another
-- hanging of duct work, whether or not duct work
was fabricated by that employee;
-- insulation of duct work prior to its being hung.
Mr. Ryan did not consider the insulation of duct work subsequent
to it being hung as sheet metal work. He opined that this task
should be regarded as asbestos work.
Mr. Ryan testified that a four year apprenticeship is
required before one can be considered a journeyman sheet metal
worker. The apprentice, responsible for carrying the duct work
to be installed to the journeyman, is paid 40% of a journeyman's
salary during his first year of apprenticeship. He is not
considered a sheet metal worker during this apprenticeship.
Wayne Norman, a civil engineer with the United States Army
Corps of Engineers since 1977, was involved with the project as a
supervisor inspecting the work once a week. Testifying for
Respondent, he stated that, as part of these inspections, he
would enter the crawl spaces and check the method of attaching
the duct work and the insulation of the duct work.
Mr. Norman opined that the ratio of skilled workers to
laborers needed for any particular job depended upon the type of
work to be performed. On the project in question, more laborers
were required than is normally needed due to the fact that it [7]
[8] entailed the modernization of an old building and the work
areas are more confined than is the case when dealing with new
construction.
Contrary to Mr. Ryan's testimony, Mr. Norman stated that he
viewed the hauling of sheet metal as work performed by laborers.
When questioned as to whether the holding of duct work for the
journeyman to install was also laborer's work, Mr. Norman
responded that he could not provide a qualified answer. Finally,
he stated that a first year apprentice would be performing
laborer's work as part of his learning process.
Warren Emley, vice president of Temp Con Service, a
mechanical contracting firm, also testified for Respondent. At
the outset of his fifteen years with that firm he worked as a
laborer installing air conditioning and heating equipment.
Mr. Emley explained that one of the differences between
renovation work on an old building and new construction is that
the former usually has smaller work areas. Because of this
difference, renovation work usually utilizes fewer mechanics.
Mr. Emley reviewed blueprints of the HVAC work being
performed on the project. He had also visited the work site
while installation of the duct work was taking place during 1984
due to the fact that Temp Con Services was a subcontractor under
Thomas H. Barham, the prime mechanical contractor on the job.
Based upon this familiarity with the job site, Mr. Emley stated
that his normal practice on a project such as that would be to
have his laborers unload the trucks and transport the equipment
into the site. The journeyman or mechanics would then oversee
the installation of the equipment. In terms of a ratio, he
opined that such a project would employ either an even number of
mechanics and apprentices or one mechanic for every two
apprentices.
According to Mr. Emley, a first year apprentice, similar to
a laborer, is responsible for unloading the trucks, putting the
equipment on the site and setting the work up for the mechanic.
An apprentice can be distinguished from a laborer in that he is
learning from a journeyman on his way to himself becoming a
journeyman. A journeyman is responsible for the installation:
he reads the blueprints to determine where the installation goes;
he ensures that it is properly installed; and he reports back to
the office as to what materials will next be needed on the job.
Mr. Emley opined that a first year apprentice would not have the
capabilities necessary to perform these tasks.
Mr. Emley testified that, when reviewing an installation
job, he could determine whether the duct work had been installed
by a journeyman, or an apprentice/laborer. He stated that the
indicia is the straightness of the installation. When dealing [8]
[9] with an apprentice, the duct work does not usually run
perfectly straight. When asked about the quality of the
installation which he observed on the project in question, he
replied that he "felt that the installation was fine." (TR 338).
Back Wage Determination
The determination of the wage rate to be paid to workers
employed upon the work site is governed by 29 C.F.R. [sec]
5.5(a)(1)(i), which requires that all mechanics and laborers be
paid:
the full amount of wages and bona fide fringe
benefits (or cash equivalents thereof) due at
payment computed at rates not less
than those contained in the wage
determination of the Secretary of Labor...
This subpart also provides that such wage rate shall be based
upon the classification of work actually performed, without
regard to skill. (An exception to this provision, contained in
[sec] 5.5(a)(4), deals with the employment of apprentices or
trainees at wages less than the predetermined rate for the work
which they performed. That exception is not here applicable as the
requirements for such a program have not been met.)
Finally, [sec] 5.5(a)(1)(i) provides that:
Laborers or mechanics performing work in more
than one classification may be compensated at
the rate specified for each classification
for the time actually worked therein:
Provided, that the employer's payroll records
accurately set forth the time spent in each
classification in which work is performed.
The prime contractor does not dispute the wage determination
of the Secretary of Labor based upon the various classifications
of workers. (TR 10). The wage determinations for the
classifications at issue -- laborer and sheet metal worker -- in
effect during the audit period, are as follows:
Basic Hourly --Fringe Benefits--
Rate Total
H & W Pensions Vacations Education Rate
Laborer $9.40 .90 1.45 --- .10 $11.85
Sheet Metal
Worker $14.09 .99 1.95 1.13 .09 $18.25
[9][10
At issue is whether certain employees on the project
performed sheet metal work but were misclassified as laborers. A
great deal of testimony was elicited for the purpose of
establishing exactly what tasks constitute sheet metal work.
Michael Ryan relied upon his nearly thirty years of
experience in sheet metal work in opining that handling,
fabricating and installing duct work is within the ambit of sheet
metal work. He also considered the inside insulation of duct
work prior to its assembly as sheet metal work, whereas the
insulation on the outside of duct work is the jurisdiction of
asbestos workers.
Wayne Norman supervised the project in his capacity as civil
engineer with the Corps of Engineers. He testified that hauling
sheet metal work is laborer's work. He could not, however, give
an opinion as to whether the holding of sheet metal for its
installation was also laborer's work. Respondent's other expert
witness, Warren Emley, stated that it is the task of the laborer
to transport the necessary equipment on to the worksite while its
installation is the responsibility of journeymen (sheet metal
workers).
Finally, for the purpose of establishing what work comprises
the classification of sheet metal worker, the Secretary has
submitted into evidence the Constitution and Ritual of the Sheet
Metal Workers' International Association. (SE-7). This document
claims jurisdiction on the part of the association over the
following aspects of work:
Estimating, manufacture, fabrication,
assembling, handling, erection, hanging,
application, adjusting, alteration,
repairing, dismantling, reconditioning,
testing and maintenance of all sheet metal
work, all working drawings or sketches
(including those taken from original
architectural and engineering drawings and
sketches) used in fabrication and erection
. . .
In weighing the evidence on this matter, I am convinced that
the fabrication, handling or transporting, and hanging of sheet
metal all fall within the classification of sheet metal work. I
reject Respondent's argument that the employees on the project
who were performing these tasks for the first time were unskilled
laborer's whose wage rate should reflect that fact. Any workers
who are shown to have either fabricated, handled or installed
sheet metal duct work will be found to have been a sheet metal
worker. The Act mandates that an employee be paid according to
the classification of work performed, without regard to skill.
29 C.F.R. [sec] 5.5(a)(1)(i) (See also Matter of J.B.L.
Construction [10][11] Co., Inc., CCH Labor Law Reports [par] 31,239
(1978); Matter of Titan Atlantic Construction Corp., CCH Labor Law
Reports [par] 31,238 (1978)).
Having examined the totality of the record evidence, I
conclude that the payroll records maintained by Abarb are not an
accurate reflection of the work performed by the employees on the
project. Such inaccurate record keeping is in direct
contravention of Section 5.5(a)(3) of the Act, which requires
that the contractor (in this case Abarb) maintain payroll and
basic records containing the correct classification, hourly rates
of wages paid and daily and weekly number of hours worked for
each employee. An examination of the testimony of five former
Abarb employees reveals that, in many respects, the payroll
records in evidence do not contain, in a correct manner, this
information.
Each of the testifying employees described in detail work
which they and others performed which should properly be
classified as sheet metal work (in accordance with my prior
determination as to what tasks fall within that classification).
In addition, two employees -- Joseph Napolitano and Michael
Arneman -- credibly testified that they were being paid $10 an
hour at a time when the payroll records listed the wage rate at
$11.85 per hour.
In Anderson v. Mt. Clemen[]s Pottery Co., 328 U.S. 680
(1946), the Supreme Court addressed the situation wherein an
employer, in violation of the Fair Labor Standards Act, failed to
keep proper payroll records. In establishing the burden of proof
in such a setting, the Court held that:
where the employer's records are inaccurate
or inadequate and the employee cannot offer
convincing substitutes ... [the] employee has
carried out his burden if he proves that he
has in fact performed work for which he was
improperly compensated and if he produces
sufficient evidence to show the amount and
extent of that work as a matter of just and
reasonable inference. The burden then shifts
to the employer to come forward with evidence
of the precise amount of work performed or
with evidence to negative the reasonableness
of the inference to be drawn from the
employee's evidence. If the employer fails
to produce such evidence, the court may then
award damages to the employee, even though
the result may be only approximate. [11][12]
As outlined below, I find that, with regard to some employees,
the Secretary has produced sufficient evidence showing the amount
and extent of work performed by those employees for which they were
not properly compensated. I further find that, in these instances,
Respondents have failed to produce evidence necessary to rebut the
inferences drawn from the Secretary's evidence.
In making a determination as to what work was performed by the
various employees on the work site, and thus what classification
and wage rate is appropriate for that work, I credit the accounts
of the five employees who testified at the hearing. These detailed
accounts are consistent in most significant aspects and have not
been controverted by the testimony of any other persons who
witnessed the work which was performed at the site. With regard to
those employees, I render the following findings:
1. Michael Arneman - Performed sheet metal work as he
fabricated and installed duct work; worked 27.5 hours per week,
contrary to payroll records listing him as having worked 18.143
hours and 17.722 hours for the weeks ending November 5 and November
12, 1983, respectively.
2. Mark Goggins - Performed sheet metal work as he fabricated
and installed duct work; paid the laborer's rate of $11.85 per
hour, in accordance with payroll records.
3. Tina Jaggers - Performed sheet metal work as, in addition,
to insulating, she hung sheet metal duct work; paid the laborer's
rate of $11.85 per hour, in accordance with payroll records.
4. Joseph Napolitano - Performed work as a sheet metal worker
as, in addition to insulating, he assisted in the fabrication and
installation of duct work; paid $10 per hour from February 12
through March 12, 1983 and $11.85 thereafter, whereas the payroll
records state that he was paid $11.85 throughout his employment.
5. Peter Reuter - Performed sheet metal work as he was
involved in the fabrication, transportation and installation of
sheet metal duct work; paid the laborer's rate of $11.85 per hour,
in accordance with the payroll records.
Because the ten remaining employees did not testify at the
hearing, a more involved process is needed in order to fashion a
fair resolution of the case in regard thereto. In the instances
where Mr. Galatro's testimony as to the alleged proper
classification and actual wage rate of an employee is not
corroborated by any other evidence in the record, I find that the
Secretary has failed to prove that the payroll records are not an
accurate account of the work performed and the wages paid. On [12]
[13] the other hand, I accept as adequate proof the testimony of
the five employees present at the hearing who were able to provide,
in a credible and consistent manner, details of the work
performed by those employees who did not testify.
With regard to those employees on the project who were not
present at the hearing, and thus were unable to testify as to the
work which they performed and the wage rate which they were paid
for that work, I find the following:
1. Edward Black - I find the unsupported testimony of Mr. Galatro
-- based upon one conversation with Mr. Black during the course
of the investigation -- insufficient to rebut this employee's
classification and corresponding wage rate of insulator as
documented in the payroll records.
2. Jeff Christopher - Based upon the testimony of Michael Arneman
-- who installed duct work with Mr. Christopher -- I find that
this employee worked as a sheet metal worker and was therefore
misclassified in the payroll records as a laborer. Because the
payroll records do not list the daily hours worked by Mr.
Christopher, and inasmuch as the total hours recorded do not
appear to be an accurate account of the hours actually worked, I
credit Mr. Arneman's testimony in finding that Mr. Christopher
worked 27.5 hours per week.
3. Bob Dalkiewicz - I find the unsupported testimony of Mr.
Galatro -- based upon one conversation with Mr. Dalkiewicz in
November 1983 -- insufficient to rebut this employee's
classification and corresponding wage rate of laborer, as
evidenced by the payroll records.
4. Philip DeMarco - I find the unsupported testimony of Mr.
Galatro -- based upon one conversation with Mr. DeMarco in
November 1983 -- insufficient to rebut this employee's
classification and corresponding wage rate of laborer, as
evidenced by the payroll records.
5. Charles Miles - I find the unsupported testimony of Mr.
Galatro -- based upon one conversation with Mr. Miles during the
course of the investigation -- insufficient to rebut this
employee's classification and corresponding wage rate of laborer
and, thereafter, sheet metal worker, as evidenced by the payroll
records.
6. John Miles - The record is void of any evidence to support the
Secretary's claim that the payroll records are inaccurate with
respect to this employee.
7. Robert Miller - I find the unsupported testimony of Mr.
Galatro -- based upon one conversation with Mr. Miller during the
[13][14] course of the investigation -- insufficient to rebut this
employee's classification and corresponding wage rate of laborer,
as evidenced by the payroll records.
8. Richard Reamer - Based upon the testimony of Peter Reuter and
Joseph Napolitano, I find that Mr. Reamer worked as a sheet metal
worker at a time when he was classified in the payroll records as
a laborer. There is no claim that he was not paid at the wage
rate for the classification of laborer.
9. John Reuter - Based upon the testimony of Peter Reuter, I find
that Mr. Reuter worked as a sheet metal worker and was therefore
misclassified in the payroll records as a laborer. The evidence
submitted by the Secretary is neither sufficient nor specific
enough to rebut the payroll records which show that Mr. Reuter
only worked the week ending November 5, 1983 and was paid $11.85
per hour for the hours worked that week.
10. Paul Ulyanov - Because none of the witnesses who testified
observed Mr. Ulyanov performing sheet metal tasks at a time when
he was not so classified in the payroll records, I find that the
payroll records are accurate with regard to the work performed
by, and the wage rate paid to, this employee.
I note here that some of the employees who I have found to
have performed sheet metal work also performed tasks which fall
within classifications other than sheet metal worker. As already
stated, Section 5.5 of the Act permits employees who work in more
than one classification to be compensated based upon the actual
work performed within each classification. However, in order
for an employer to avail himself of this, Section 5.5 requires
that "the employer's payroll records accurately set forth the
time spent in each classification in which work is performed."
Based upon my finding that several employees were misclassified
in the payroll records, it follows that this requirement has not
been met. Accordingly, all employees who were found to be
performing sheet metal work shall be paid according to the wage
rate for that classification, irregardless of whether some of
their time on the project was spent performing tasks which fall
into a different classification with a corresponding lower wage
rate.
Still to be addressed is the absence of any payroll records
for the weeks ending October 7, 14, 21 and 28, 1983. No evidence
has been submitted which specifically verifies: which employees
worked during this period, what type of work they were
performing, how many hours they worked and what wages they were
paid. Because it is the fault of Respondent that these records
are absent, and inasmuch as it has failed to provide any
substitute proof thereof, I conclude it is reasonable and fair to
[14][15] assume that any employee who worked both prior and
subsequent to this period also worked during this period. (This
covers four employees -- Mark Goggins, Joseph Napolitano, Richard
Reamer and Peter Reuter). Not to make this assumption is to render
an unjust resolution to this case. The determination of the hours
worked during this period will be based upon the average number
of hours worked per week by the respective employee for each week
that is recorded. Because there is no evidence to the
contrary, it will be presumed that each employee's rate of pay
for this period was the same as it was for the weeks preceding
the missed payrolls, as already determined herein. Finally, the
work performed by the individual employees during those four
weeks will be presumed to have been the same type of work which I
found that employee to have been performing for the weeks for
which there are payroll records.
Based upon the foregoing conclusions, I find that the
following employees were underpaid the following amounts for the
reasons stated:
Michael Arneman - Paid $425 for two weeks' work, should have
been paid $18.25 per hour for 55 hours work;
Underpaid $578.75.
Jeff Christopher - Paid $425 for two weeks' work; should have
been paid $18.25 per hour for 55 hours work;
Underpaid $578.75
Mark Goggins - Paid $11.85 per hour for 280 hours of work
when he should have been paid $18.25 per hour;
Underpaid $ 1,792.00.
Tina Jaggers - Paid $11.85 per hour for 116 hours of work
when she should have been paid $18.25 per
hour; Underpaid $742.40.
Joseph Napolitano - Paid $10.00 per hour for 156.5 hours of work
and $11.85 per hour for 796 hours of work when
he should have been paid $18.25 per hour;
Underpaid $7,288.82.
Richard Reamer - Paid $11.85 per hour for 266 hours of work
when he should have been paid $18.25 per
hour; Underpaid $1,702.40.
John Reuter - Paid $11.85 per hour for 31 hours of work
when he should have been paid $18.25 per
hour; Underpaid $198.40.
Peter Reuter - Paid $11.85 per hour for 566.36 hours of
work when he should have been paid $18.25
per hour; Underpaid $3,560.70. [15[16]
The Act provides that the Wage and Hour Division shall:
withhold or cause to be withheld from the
contractor ... so much of the accrued
payments or advances as may be considered
necessary to pay laborers and mechanics ...
employed by the contractor or any
subcontractor the full amount of wages
required by the contract.
29 C.F.R. [sec] 5.5(a)(2)
This clause has consistently been interpreted as holding the
prime contractor responsible for back wages due employees of its
subcontractors. See Matter of 1018 DeveloPment Company, CCH
Labor Law Reports [par] 31,348 (1980); Matter of H.G. Toll Company,
CCH Labor Law Reports [par] 31,291 (1979); Matter of J.B.L.
Construction Co., Inc., CCH Labor Law Reports [par] 31,239 (1978).
This is so even in cases where the prime contractor was not fully
aware of the violations until after they occurred. J.B.L.
Construction.
ORDER
As a result of the foregoing findings of fact and
conclusions of law, it is ORDERED that back wages totalling
$16,442.22 be paid to the aforenamed employees as follows:
1. Michael Arneman $ 578.75
2. Jeff Christopher 578.75
3. Mark Goggins 1,792.00
4. Tina Jaggers 742.40
5. Joseph Napolitano 7,288.82
6. Richard Reamer 1,702.40
7. John Reuter 198.40
8. Peter Reuter 3,560.70
GEORGE G. PIERCE
Administrative Law Judge
Dated NOV 6 1987
Boston, Massachusetts
GGP:dr [16]
