TAP ELECTRICAL CONTRACTING, INC., WAB No. 84-01 (WAB Mar. 4, 1985)
CCASE:
TAP ELECTRICAL CONTRACTING
DDATE:
19850304
TTEXT:
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[1] WAGE APPEALS BOARD
UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, D. C.
In the Matter of
TAP ELECTRICAL CONTRACTING, INC. WAB Case No. 84-01
Calcedo Construction Corporation Dated: March 4, 1985
Expert Electric Inc.
Bronx, New York
APPEARANCES: N. George Turchin, Esquire for Expert Electric Inc.
Terry R. Yellig, Esquire for Building and
Construction Trades Department, AFL-CIO
Barbara E. Kahl, Esquire, Gail V. Coleman, Esquire
for the Wage and Hour Division, U.S. Department of
Labor
BEFORE: Alvin Bramow, Chairman, Thomas X. Dunn, Member and
Stuart Rothman, Member
DECISION OF THE WAGE APPEALS BOARD
This case is before the Wage Appeals Board on the petition of
Expert Electric Inc. seeking review of an Administrative Law
Judge's (ALJ) Decision dated June 13, 1983 which was subsequently
adopted by the Administrator, Wage and Hour Division. See
attachment.
Expert Electric Inc. was a subcontractor on two building
construction renovations in New York which were subject to the
labor standards provisions of the Public Works Employment Act [1]
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[2] of 1976, as amended, and the Contract Work Hours and Safety
Standards Act (CWHSSA) with regard to one contract, and the
Davis-Bacon Act and CWHSSA with regard to the other contract.
Following Department of Labor investigations of the certified
payrolls submit[t]ed by Expert to the contracting agencies, the
Deputy Administrator of the Wage and Hour Division directed that a
hearing be held before an ALJ to determine if Expert had violated
provisions of the Davis-Bacon and related Acts.
The ALJ found that Expert had, with one exception, paid less
than the basic hourly amounts plus annuity due for journeyman
electricians under the applicable wage determinations. It was also
ruled that some of Expert's employees were misclassified as brush
painters and/or trainees, and that except for a brief time, none of
the employees was registered in an approved apprenticeship or
trainee program. Finally, the ALJ ruled that a total of $45,909.26
in back wages was due 17 employees at one construction site and 11
employees at the other construction site.
* * *
The findings and conclusions of law and the Order set forth in
the Administrative Law Judge's Decision dated June 13, 1983, which
was reviewed and approved by a decision of the Administrator, Wage
and Hour Division, dated November 3, 1983, are adopted in their
entirety as the Decision of the Wage Appeals Board. [2]
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[3] The Board in adopting the Administrative Law Judge's Decision
did not have to reach the issue as to whether some employees were
misclassified as trainees because the City of New York did not have
the Bureau of Apprenticeship and Training of the Department of
Labor certify prior approval or recognition of its training program
until April 5, 1979. It is sufficient to find misclassification
because the petitioner failed to comply with the requirements
contained in 29 C.F.R. 5.5(a)(4)(ii) pertaining to the employment
of trainees. This Regulation provides in pertinent part as
follows:
. . . Any employee listed on the payroll at a trainee
rate who is [*] not registered [*] and participating in
a training plan approved by the Bureau of Apprenticeship
and Training shall be paid not less than the wage rate
determined by the Secretary of Labor for the
classification of work he actually performed. [*]
(Emphasis added). [*]
Here, the record is clear that during much of the relevant
time period, the employees listed as trainees on petitioner's
payrolls were not individually registered in a program as required
by the above-mentioned regulation. This fact alone mandated
that the workers listed as trainees were entitled to the
journeyman's pay for all the periods of time in which they were not
individually registered with and so approved by the Bureau of
Apprenticeship and Training, U.S. Department of Labor.
The petitioner contends that Wage and Hour is estopped from
enforcing the payment of the journeyman electrician's wage rate [3]
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[4] to employees classified as trainees. It bases this contention
on the fact that the City of New York trainee program is a joint
activity of the City and the Department of Labor, pursuant to
the Comprehensive Employment and Training Act, 29 U.S.C. 800
(1974). Thus, the petitioner, Expert Electric Inc., the City and
the Department of Labor are partners, each bound by the acts
and omissions of the other within the scope of the activities
that they jointly agreed to undertake. Therefore, since the
City failed to register Expert Electric's employees as trainees
such failure estops the Administrator of Wage and Hour from
enforcing the provisions of the Davis-Bacon Act and related
statutes and the Regulations promulgated thereunder. The Board
rejects this argument. On the contrary, the record does not
show that the New York City trainee program was a joint activity.
This Board has rejected estoppel arguments that when a
petitioner has relied on advice or acts of a contracting officer
as to the appropriate wage rate, it operates to relieve petitioner
of its responsibility to pay the correct wage rates to laborers
and mechanics employed on the project. The alleged failure
by the City of New York to register such employees also would
not estop the Administrator from enforcing the Davis-Bacon Act
and related statutes. The Secretary of Labor was given the power
to regulate the interpretation and enforcement of the Davis- [4]
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[5] Bacon Act and related Acts by Reorganization Plan No. 14 of
1950. This authority has been reinforced by two opinions of the
Attorney General of the United States. See Sentinel Electric
Company, WAB Case No. 82-09 (April 5, 1984) and the cases cited
therein.
In addition, the record is voluminous and contains substantial
evidence to support the ALJ's findings as to the violations and
amount of back wages due. This Board is an appellate body and
except upon a showing of extraordinary circumstances will not
consider additional evidence. There is no need in this case to
consider any evidence beyond the record before the ALJ.
In view of the foregoing, the decision of the ALJ, adopted
by the Administrator, is affirmed and the petition herein is
dismissed.
BY ORDER OF THE BOARD
Craig Bulger,
Executive Secretary
Wage Appeals Board [5]
