B & B CONTRACTORS, INC., WAB No. 89-04 (WAB Apr. 29, 1991)
CCASE:
B & B CONTRACTORS, INC.
DDATE:
19910429
TTEXT:
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[1] WAGE APPEALS BOARD
UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, D. C.
In the Matter of:
B & B CONTRACTORS, INC.
Bureau of Land Management WAB Case No. 89-04
Contract YA-552-CT2-23
Riparian Fencing, Rich
County, Utah
BEFORE: Charles E. Shearer, Jr., Chairman
Ruth E. Peters, Member
Patrick J. O'Brien, Member
DATED: April 29, 1991
DECISION OF THE WAGE APPEALS BOARD
This matter is before the Wage Appeals Board on the petition
of B & B Contractors ("B & B") seeking review of the Decision and
Order (Attachment) of Administrative Law Judge ("ALJ") James J.
Butler dated August 1, 1988 wherein B & B was ordered to pay seven
employees back wages of $2,193.91 ($1,838.73 under the Davis-Bacon
Act, 40 U.S.C. [sec] 276a et seq. and $355.18 under the Contract
Work Hours and Safety Standards Act, 40 U.S.C. [sec] 327 et seq.).
The ALJ found that the B & B violated the Davis-Bacon Act by
failing to keep accurate and adequate records in two respects: B
& B did not properly record the correct number of hours worked by
certain employees; and certain other employees were not recorded at
all. B & B also failed to pay its employees the requisite
predetermined wage as required by the contract. For the reasons
stated below, the petition for review is denied and the ALJ's
decision is affirmed. [1]
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[2]
I. BACKGROUND
B & B contracted with the Department of the Interior's Bureau
of Land Management ("BLM") to construct riparian fences in Rich
County, Utah and to pay laborers and equipment operators basic
hourly rates, including fringe benefits, of at least $11.06 and
$11.21, respectively, under the wage decision incorporated into the
contract. Work began on August 7, 1981 and was completed on July
22, 1983.
James Barrett, President of B & B, recorded hours worked by
employees on the back of snuff cans which were discarded after the
payroll records were turned in to the contracting agency. The
information contained in the payroll was incorrect in that one
employee was actually paid only $5.00 per hour rather than the
$11.00 specified on the payroll record, and the hours were
incorrectly reported to match the sums received.
Barrett also deducted $132.00 per week from certain employees
wages for room and board. The "room" was a wall tent set up in a
remote location near the job site.
The compliance officer testified that the employees who
responded to her requests for information all indicated that they
had not been paid for all hours worked. No employees testified at
the hearing and none could be located. The ALJ found, in awarding
back wages, "that the compliance officer thoroughly weighed the
facts presented to her and made logical choices, giving respondent
as much of the benefit of the doubt as possible, in determining the
back wages due."
II. DISCUSSION
Where an employer has falsified or kept inadequate payroll
records, the employees cannot be penalized on the ground that the
precise extent of their uncompensated work cannot be proven.
Instead, the employees are to be awarded compensation on the most
accurate basis possible under the circumstances. The employee (or
the Secretary on the employee's behalf) need only raise a "just and
reasonable inference" as to the uncompensated work performed, and
the burden then shifts to the employer to rebut the inference.
Apollo Mechanical, Inc., WAB Case No. 90-42 (March 13, 1991) (Slip
Op. at 2-4).
Here the ALJ found, based on his assessment of the credibility
of the witnesses, that the Department of Labor had raised a
reasonable inference which [2]
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[3] the petitioner failed to rebut. Based on the record before it,
the Board has no reason to disturb ALJ Butler's findings.
In summary, the Board affirms ALJ Butler's decision in its
entirety.
BY ORDER OF THE BOARD:
Charles E. Shearer, Jr., Chairman
Ruth E. Peters, Member
Patrick J. O'Brien, Member
_________________________________
Gerald F. Krizan, Esq.
Executive Secretary [3]
