APOLLO MECHANICAL, INC., WAB Case No. 90-42 (WAB Mar. 13, 1991)
CCASE:
APOLLO MECHANICAL, INC.
DDATE:
19910313
TTEXT:
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[1] WAGE APPEALS BOARD
UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, D. C.
In the Matter of:
APOLLO MECHANICAL, INC.,
Subcontractor WAB Case No. 90-42
BEFORE: Charles E. Shearer, Jr., Chairman
Ruth E. Peters, Member
Patrick J. O'Brien, Member
DATED: March 13, 1991
DECISION OF THE WAGE APPEALS BOARD
This case is before the Wage Appeals Board on the petition of
the Acting Administrator of the Wage and Hour Division for review
of the August 15, 1990 decision and order of Administrative Law
Judge ("ALJ") G. Marvin Bober. The ALJ found that subcontractor
Apollo Mechanical, Inc. ("Apollo") violated the Davis-Bacon Act (40
U.S.C. [sec] 276a et seq.) and the Contract Work Hours and Safety
Standards Act (40 U.S.C. [sec] 327 et seq.; "CWHSSA"). However,
the ALJ ruled that all but one employee was entitled to only 50% of
the back wages assessed by the Wage and Hour Division. For the
reasons stated below, the Board grants the petition for review and
remands this matter to the ALJ for further proceedings consistent
with this decision.
I. BACKGROUND
Apollo was a subcontractor on a contract with the Department
of the Army for construction of barracks at Fort Sill, Oklahoma.
Upon an investigation into Apollo's compliance with prevailing wage
and overtime requirements, the Wage and Hour Division determined
that 48 employees had been underpaid. The total amount of the
underpayment was computed as $214,435.35 in unpaid wages resulting
from violations of the Davis-Bacon Act, and $17,825 in unpaid
overtime compensation resulting from CWHSSA violations. [1]
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[2]
A hearing was held before ALJ Bober on the issues of unpaid
wages and the proposed debarment of Apollo and Apollo's president
and vice president. Twenty-eight employees testified at the
hearing. The Department of Labor compliance officer who
investigated Apollo's compliance with labor standards requirements
also testified. The ALJ stated that he was convinced that the
compliance officer "did a thorough job, and the best job possible
under the circumstances of this case" (ALJ's decision and order
("ALJD") at 4). The ALJ also stated that he found the testimony of
the employee witnesses to be credible (Id.)
The ALJ found that Apollo violated the Davis-Bacon Act and the
CWHSSA (ALJD at 5). The ALJ stated that he was persuaded that
Apollo "failed to pay its employees the proper wages for overtime,
failed to properly classify a number of its employees, and on a
regular basis required a number of employees to work uncompensated
before and after their scheduled shifts (Id.). However, the ALJ
also found that "there were a significant number of employees whose
testimony conflicted with the wage and hour computations" (Id.).
The ALJ stated that with the exception of employee Michael
Capuccio, who kept a detailed calendar on which he recorded his
work hours, "[f]or the most part the employees did not keep records
which could be used to calculate the sums owed" (ALJD at 5). The
ALJ found the back wage computations as to Capuccio to be accurate,
but determined that "as to the remaining employees, I feel the sums
must be reduced" (Id.). The ALJ concluded that with the exception
of Capuccio, each employee was entitled to "50% of the amount
calculated by the compliance officer" (Id.). Accordingly, the ALJ
reduced the total amount of back wages due to $116,680.98 (Id. at
7). The ALJ also concluded that Apollo and Apollo's president and
vice president should be debarred (Id. at 5-7).
II. DISCUSSION
The Board recently has had occasion to summarize the
application of the principles set forth in Anderson v. Mt. Clemens
Pottery Co., 328 U.S. 680 (1946), to back wage claims arising under
the Davis-Bacon Act or Related Acts. In P.B.M.C., Inc., WAB Case
No. 87-57 (Feb. 8, 1991), the Board explained that under Mt.
Clemens Pottery, an employee who seeks to recover unpaid wages "has
the burden of proving that he performed work for which he was not
properly compensated." 328 U.S. at 687.
However, where an employer's records are inaccurate or
incomplete, employees are not to be penalized by denying them back
wages simply because they cannot prove the precise amount of
uncompensated work. In such [2]
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[3] circumstances, an employee meets his burden "if he proves that
and if he produces sufficient evidence to show the amount and extent
of that work as a matter of just and reasonable inference." 328 U.S.
at 687. The employer then has the burden to demonstrate the precise
number of hours worked or to present evidence sufficient to negate "the
reasonableness of the inference to be drawn from the employee's
evidence." 328 U.S. at 688. In the absence of such a showing, the
court "may then award damages to the employee, even though the
result be only approximate." Id. Furthermore, Mt. Clemens Pottery
provides specific guidance on the responsibilities of the trier of
fact: "Unless the employer can provide accurate estimates [of
hours worked], it is the duty of the trier of facts to draw
whatever reasonable inferences can be drawn from the employees'
evidence. . . ." Id. at 693.
In another recent case (Permis Construction Corp. and Trataros
Construction Corp., WAB Case Nos. 87-55 & 87-56 (Feb. 26, 1991)),
the Board further explained that the Mt. Clemens Pottery principles
permit the award of back wages to non-testifying employees based on
the representative testimony of a small number of employees. In
other words, the Department of Labor may rely on the testimony of
representative employees to establish a prima facie case of a
pattern or practice of violations. The Board also explained that
in the absence of accurate payroll records, the compliance officer
must necessarily make reasonable inferences about the extent of
violations, and may reconstruct payrolls where the employer's
records are inaccurate or incomplete.
On review of the record in this case, the Board is unable to
say that the ALJ fulfilled his duty under Mt. Clemens Pottery "to
draw whatever reasonable inferences can be drawn from the
employees' evidence. . . ." 328 U.S. at 693. The ALJ found that
Apollo failed to pay its employees proper overtime compensation,
misclassified a number of employees, and regularly required several
employees to work uncompensated before and after their scheduled
shifts. The ALJ also found the testimony of the employee witnesses
to be credible, and stated that he was convinced that the
Department of Labor compliance officer "did the best job possible
under the circumstances of this case" (ALJD at 5). However --
without specifying which employee witnesses or in what manner their
testimony conflicted with the compliance officer's calculations --
the ALJ also stated that "there were a significant number of
employees whose testimony conflicted with the wage and hour
computations" (Id.). With the exception of one employee (Michael
Capuccio) who the ALJ determined kept a detailed record of the
hours he worked, the ALJ made an across-the-board 50% reduction in
the amount of back wages to be awarded to both testifying and
nontestifying employees. [3]
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[4]
We conclude that the reasoning set forth in the ALJ's decision
and order is too scant for the Board to determine that the ALJ
appropriately applied the Mt. Clemens Pottery principles set forth
above. Indeed, the ALJ did not cite or discuss Mt. Clemens
Pottery, nor did he explain how the legal principles applicable to
this case permitted the 50% across-the-board reduction in the
computed back wages as a reasonable approximation of the unpaid
wages owed to testifying and non-testifying employees. Thus, the
ALJ did not explain whether or how Apollo may have countered the
employees' evidence. In addition, the ALJ did not offer any
specifics on how, in his view, the testimony of "a significant
number of employees" conflicted with the compliance officer's
computations. Further, the ALJ's approval of the computed back
wages for one employee who the ALJ found had kept a detailed
calendar of hours worked suggests that the ALJ placed the burden on
the employees to provide precise records of wages paid and hours
worked. However, the Board has noted that it would be inconsistent
with the principles of Mt. Clemens Pottery to demand that employees
must reconstitute with precision the records that their employer
failed to keep. P.B.M.C., supra, at p. 5.
Accordingly, the Board concludes that it is necessary to
remand this matter to the ALJ for reconsideration of the back wages
owed to all 48 employees. (FOOTNOTE 1) On remand, the ALJ should take
heed of and apply the Mt. Clemens Pottery principles discussed
herein.
The Acting Administrator's petition for review is granted.
This case is remanded to the ALJ for further proceedings consistent
with this decision.
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 [4]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
(FOOTNOTE 1) In the petition for review (p. 8 n.3), the Acting
Administrator states that a reduction in the back wages is not
contested with respect to three employees who testified that they
did not perform any pre- or post-shift work. The Acting
Administrator also states (Id.) that the back wage award should be
increased for one employee for whom no pre- or post-shift work had
been claimed, but who testified that he performed such work. The
Acting Administrator may raise these points to the ALJ on
remand. [4]
