ARB CASE NO. 99-065
ALJ CASE NO. 98-DBA-11
DATE: June 12, 2002
In the Matter of:
Disputes concerning the payment of
prevailing wage rates and overtime by:
SUPERIOR PAVING AND
MATERIALS, INC.
With respect to laborers and mechanics
employed by the prime contractor on
Department of Transportation Project No.
0785-1994
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For Petitioner Superior Paving and Materials, Inc.:
Roger L. Sabo, Esq., Denise L. Hanson, Esq., John J. Krimm, Jr., Schottenstein, Zox & Dunn, Columbus, Ohio
For Respondent Administrator, Wage and Hour Division: Joan Brenner, Esq., Paul L. Frieden, Esq., Steven J. Mandel, Esq., Eugene Scalia, Esq., U.S. Department of Labor, Washington, D.C.
FINAL DECISION AND ORDER
This matter is before the Administrative Review Board (Board) on the Petition for Review filed by Superior Paving and Materials, Inc. (Superior Paving or Petitioner). Superior Paving seeks review and reversal of the February 19, 1999 Decision and Order issued by a United States Department of Labor Administrative Law Judge (ALJ). The Administrator, Wage and Hour Division, appears before the Board in this matter as Respondent, opposing the Petition for Review.
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The ALJ issued the Decision and Order (D&O) after an administrative hearing conducted on October 14 and 15, 1998. The ALJ ruled that highway construction traffic control work performed for Superior Paving by off-duty police officers fell within the description of the work of a "flagger" and that those individuals were therefore "laborers or mechanics" within the meaning of the Davis-Bacon Act, as amended (DBA or the Act), 40 U.S.C.A. § 276a et seq. (West 2001) and the Contract Work Hours and Safety Standards Act (CWHSSA), 40 U.S.C.A. § 327 et seq. (West 2001). Secondly, the ALJ concluded that Superior Paving was the employer of the off-duty police officers and was therefore liable to these employees for prevailing rate and overtime wages as required by the Act and the CWHSSA. Accordingly, the ALJ found that Superior Paving was liable to the employees for prevailing rate back wages in the amount of $16,893.57 and overtime back wages in the amount of $473.67.
Superior Paving petitioned for review on the grounds that the ALJ had misinterpreted the work performed by the off-duty police officers and ignored legal precedent that off-duty police officers are not employees of a construction contractor. The Board accepted the Petition for Review after determining that the Petition was timely filed.
JURISDICTION AND STANDARD OF REVIEW
The Board has jurisdiction to hear and decide appeals taken from ALJs' decisions and orders concerning questions of law and fact arising under the DBA (and related Acts including the CHWSSA). 29 C.F.R. § 5.1 (2001); 29 C.F.R. § 6.34 (2001); 29 C.F.R. § 7.1(b) (2001).
In reviewing an ALJ's decision, the Board acts with "all the powers [the Secretary of Labor] would have in making the initial decision . . .." 5 U.S.C.A. § 557(b) (West 1994). See also 29 C.F.R. § 7.1(d)(2001) ("In considering the matters within the scope of its jurisdiction the Board shall act as the authorized representative of the Secretary of Labor. The Board shall act as fully and finally as might the Secretary of Labor concerning such matters."). Thus, "the Board reviews the ALJ's findings de novo." Thomas & Sons Building Contractors, Inc., ARB No. 00-050, slip op. at 4 (Aug. 27, 2001); see also Sundex, Ltd. and Joseph J. Bonavire, ARB No. 98-130, slip op. at 4 (Dec. 30, 1999).
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BACKGROUND
The facts underlying this dispute are largely uncontested. The State of Ohio's Department of Transportation (ODOT) awarded prime contractor Superior Paving a contract (the contract) for the widening of State Route (SR) 43 located in the Village of Carrollton, Ohio. Joint Exhibit (JX) -1. Superior Paving's road-widening work on SR 43 was partially funded pursuant to the Federal Aid Highway Acts (FAHA), 23 U.S.C.A. § 113 (West 1994), the provisions of which require that such construction be subject to the labor standards provisions of the DBA and the CWHSSA. The contract contained the requisite prevailing wage and overtime labor standards provisions, as specified by the U.S. Department of Labor regulation at 29 C.F.R. § 5.5(a). It also contained a wage determination specifying a minimum hourly basic wage rate of $16.62 and an hourly fringe benefit rate of $3.60 for the classification of "Common Laborers (Group 1)," which included the subclassification of "Flagperson." D&O 1; JX-1at C-3F.
Under the heading "Item Special – Law Enforcement Officer with Patrol Car," the contract required Superior Paving to "provide for the service of a law enforcement officer with patrol car for the exclusive purpose of controlling traffic whenever a lane or lanes are being closed or opened." D&O 1; JX at C-5B. This contract clause contained an estimate of 200 hours of such law enforcement-officer activity (one hundred hours each for two particular intersections along SR 43) and indicated that "information regarding arrangements for law enforcement services may be obtained by contacting the Village Police . . .." Id.
Superior Paving contacted the Village of Carrollton's Chief of Police, Ronald A. Yeager, and requested that the police department also provide off-duty police officers to perform traffic control work on the project, over and above the estimated 200 hours of law enforcement officer with patrol car duty, which was specified in the "Item Special" of the contract. T. 328, 329-330, 363-364. Chief Yeager set an hourly wage rate (with no fringe benefits) of $10.00 which would be payable to the officers. D&O 2; T. 363.
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Superior Paving contacted the Village of Carrollton police department each week during the execution of the contract and provided the days and times and the number of individuals it required; this information was posted at the police department by Chief Yeager. Any officers who were interested signed up for the duties. D&O 2; T. 49, 329, 365. Each morning, the off-duty officers reported to the SR 43 highway construction project site and were informed by Superior Paving employees where that day's construction zone activities would take place and, therefore, where they were to be stationed. D&O 2; T. 25, 75-76, 114-115, 302. Each officer recorded the time he or she worked on Village of Carrollton police department forms which were submitted to Superior Paving. D&O 2; T. 34-5, 80, 108. Superior Paving's holding company, Oster Enterprises, issued individual checks to the officers; the checks were mailed to the officers' homes or dropped off at the Police Department. The officers were paid at the previously established rate of $10.00 per hour. T. 33, 45.
1 Eric Stanbro, Robert Ellington, Lisa Ellington, and Ronnie Wilson. Eric Stanbro held a non-paying auxiliary commission with the Delroy (Ohio) Marshall's office until he became a Carrollton police officer in November 1995. T. 23, 37-38. The other officers were members of the Village of Carrollton force. D&O 2; T. 69, 100, 120-121.
2 As discussed infra at 11, Officer Williams' duties were so "fundamentally different" and his hours worked were so few, that we conclude it is proper to accord him different treatment from the other officers concerned in this case.
3 We are unable to ascertain from the record whether the hours of police officer duty specified at page C-5B of the contract are included in this proceeding. Since the parties' briefs did not address that special requirement, we are assuming, for purposes of this Decision and Order, that the police duty specified in the contract is not at issue.
4 It should be noted that prior to 1985, the Wage and Hour Division did not consider flaggers to be laborers or mechanics covered by the DBA. This now superceded interpretative position was based on the theory that the work of flaggers was not manual in nature. The Wage and Hour Division's policy of considering flaggers to be covered by the provisions of the DBA was effective October 18, 1985.
5 Officers Eric Stanbro, Robert Ellington, and Ronnie Wilson gave testimony that a patrol car was present infrequently. T. 26, 72, 121. Officer Lisa Ellington testified that no patrol car was present when she was working. T. 101. We note that it is common knowledge that a patrol car may be used merely as a warning device, rather than for law enforcement purposes.
6 Courts commonly allow representative employees to prove violations with respect to all employees. Anderson v. Mt. Clemens Pottery, Co., 328 U.S. 680, 684 (1946); McLaughlin v. Ho Fat Seto, 850 F.2d 586 (9th Cir. 1988), cert. denied, 488 U.S. 1040 (1989); Donovan v. Williams Oil Co., 717 F.2d 503 (10th Cir. 1983); Donovan v.Simmons Petroleum Corp., 725 F.2d 83, 86 (10th Cir. 1983); Donovan v. New Floridian Hotel, Inc., 676 F.2d 468 (11th Cir. 1982); Brennan v. General Motors Acceptance Corp., 482 F.2d 825 (5th Cir. 1973); McLaughlin v. DialAmerica Marketing, Inc., 716 F.Supp. 812 (D.N.J. 1989); Marshall v. Brunner, 500 F.Supp. 116 (W.D.Pa. 1980), aff'd in part, rev'd in part, 668 F.2d 748 (3d Cir. 1982). Cf. Secretary of Labor v. DeSisto, 929 F.2d 789, 792 (1st Cir. 1991). Thus, not all employees need to testify to prove the violations or to recoup back wages. Martin v. Selker Bros., 949 F.2d 1286, 1298 (3d Cir. 1991). In this case, Superior Paving has contended that the ALJ's ruling was erroneous as to all of the officers, not that he could not render findings as to officers who did not testify.
7 Although this opinion does not address the special condition of the contract requiring a police officer with patrol car at certain intersections, we note that only police officers would meet that requirement.
8 We note that the cases are also not pertinent to these facts. The State court decisions hold that a police officer is not the employee of a third party contractor when the officer is assigned by a superior public official to perform the work of a police officer (i.e., acts in an extension of his regular employment or performs a public function). Because they depend upon determinations that the officer is performing police officer duties or public functions, they are not relevant to this case where we have specifically found that the officers were performing the work of laborers under the Act. The two Tax Court Memos cited by Superior Paving (March v. Commisioner, T.C. Memo.1981-339, and Kaiser v. Commissioner, T.C. Memo 1996-526) are cases in which the Tax Court found that the off duty police officer hired by a third party was not an employee of the police department, but the Court did not rule as to the actual status of the officer's off-duty activities (i.e., whether the officer was an independent contractor or an employee of the company which benefited from his services). These cases are contrary to Superior Paving's argument that the officers here were employees of the Village of Carrollton, since they reason that the kind of control exercised by the police departments (which was not unlike that of the Village of Carrollton police department) was insufficient to create an employee-employer relationship. The Revenue Ruling (Rev. Rul. 74-162) is advice finding that the city is the employer of off-duty policemen whose service discharged the police department's obligation to provide private protection, where there was an agreement between the bank and the police department, and the bank paid the department a fixed amount for the services. The record here does not reflect any such obligation or any payment to the Village of Carrollton police department.
Additionally, we note that while Superior Paving has now taken the position that the Police Department was the employer of the officers, it apparently took the position before the ALJ that the officers were independent contractors. As noted above, the 1935 amendments to the Act specifically excluded using contractual relationship as a defense.
9 For instance, the off-duty officers did not attend Superior Paving employee meetings; nor did they receive copies of the company's employee handbook. T. 49.
10 We note that our ruling that the Village of Carrollton off-duty police officers were laborers and that Superior Paving, as prime contractor, is liable for the payment of DBA prevailing and CWHSSA overtime wages to the affected off-duty police officers employed as laborers is limited to the facts of this case and the circumstances presented here.