STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES A. CAMPBELL, CHARLES ) ANTHONY FARINA, and ROBERT B. ) TURNER, )

)

Petitioner, )

)

vs. ) CASE NO. 76-2089

)

SHERBA BROTHERS, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings by its duly designated Hearing Officer, G. Steven Pfeiffer, held a public hearing in this case on February 25, 1977, in Coral Gables, Florida.

The following appearances were entered: James A. Campbell appeared on his own behalf; Charles Anthony Farina appeared on his own behalf; Robert B. Turner appeared on his own behalf; Arthur S. Clark, Jr., North Miami, Florida, for the Respondent, Sherba Brothers, Inc.; and John Fowler, Miami, Florida, for Tom Murphy Construction Company.

On August 23, 1976, James A. Campbell executed an affidavit alleging that his employer paid him a wage less than the prevailing wage rate for work performed on a public work project. Campbell alleges that his employer, Sherba Brothers, Inc., owes him an additional $1,144 for work that he performed on the project during June, July, and August, 1976. On October 5, 1976, Charles Anthony Farina executed an affidavit alleging that his employer paid him a wage less than the prevailing wage rate for work that he performed on a public work project. Farina alleges that his employer, Sherba Brothers, Inc., owes him an additional $2,127.25 for work that he performed on the project during the months of April through October, 1976. On October 14, 1976, Robert B. Turner executed an affidavit alleging that his employer paid him a wage less than the prevailing wage rate for work performed on a public work project. Turner alleges that his employer, Sherba Brothers, Inc., owes him an additional $5,858.50 for work that he preformed on the project during the months of March through October, 1976.

Campbell, Farina, and Turner were employed by the same employer on the same public work project. Their cases were therefore consolidated for the purposes of conducting hearing. On November 22, 1976, the Administrator of Prevailing Wage of the Florida Department of Commerce, Division of Labor, requested that a hearing be assigned to conduct the hearing. The hearing was scheduled by notice dated December 7, 1976. At the request of the Respondent, the hearing was continued, and was rescheduled to be conducted on February 25, 1977. The Respondent has filed a Motion for Sanctions prior to the hearing. The motion was denied at the hearing on account of its becoming moot.

James A. Campbell, Charles Anthony Farina, and Robert B. Turner testified as witnesses on their own behalf. The Respondent called Mrs. Esther Ross, the

Respondent's Comptroller and Secretary-Treasurer. Hearing Officer's Exhibit 1- 4, and Respondent's Exhibits 1-9 were received into evidence at the hearing.

Robert B. turner and James A. Campbell have submitted posthearing letters in support of their claims. The Respondent has submitted a Post-Hearing Memorandum of Law.

FINDINGS OF FACT

1. James A. Campbell was employed by Sherba Brothers, Inc. on public work project at the Florida International University Interrama Campus between June 9, 1976 and August 20, 1976. Campbell was employed as an electrician helper. Campbell worked a total of 416 hours and was paid at the rate of $3.75 per hour. Work performed by Campbell closely approximates the work performed by laborers. The prevailing wage rate for laborers at Florida International University Interrama Campus Project was $6.50 per hour. If Campbell had been compensated as a laborer, he would have received $1,144 of additional compensation.

   
   

2. Campbell first saw the schedule of prevailing wage rates within two to three weeks after he began working with Sherba Brothers. Campbell never objected to the amount of his paychecks and he was satisfied with what he was paid. Campbell made the decision to file this claim after he was laid off by Sherba Brothers.

   
   

3. Charles Anthony Farina worked at a public work project on the Florida International University Interrama Campus for Sherba Brothers, Inc. from April 2, 1976 through October 8, 1976. Farina worked 324 hours at a wage rate of

   $4.00 per hour, 384 hours at a wage rate of $4.25 per hour, and 259 hours at a wage rate of $4.75per hour. Farina was employed as a first class-helper.

   Helpers and laborers perform basically the same duties. The prevailing wage rate for laborers at the Florida International University Interrama Campus Project was $6.50 per hour. If Farina had been paid at the prevailing wage rate, he would have been entitled to $2,127.25 of additional compensation.

   
   

4. Farina first saw the posted schedule of prevailing wage rates some time prior to the time that he ceased working on the

   Florida International University Interrama Campus Project. He did not immediately take any action to seek additional wages because he feared that he would lose his job. After October 8, 1976 Farina no longer worked at the Florida International University project. He continued to work for Sherba Brothers at a different project. He was fired two months after he filed his prevailing wage affidavit.

   
   

5. Robert B. Turner was employed at the Florida International University Interrama Campus Project from March 26, 1976 through October 8, 1976. Turner worked 821 hours on the project act a wage rate of $7.00 per hour, and 267 hours at a wage rate of $7.50 per hour. He was employed as an electrician foreman. The prevailing wage rate for electricians on the Florida International University Interrama Campus Project was $10.75 per hour. The prevailing wage rate for electrician foreman during that time was not posted on the prevailing wage rate schedule. The prevailing wage rate for electrician foremen in Dade County was $1.50,per hour higher than for electricians. If Turner had been compensated in accordance with the prevailing wage rate for electrician foreman, he would have received $5,858.50 in additional compensation.

   
   

6. Turner first saw the schedule of prevailing wage rates for the Florida International University Interrama Campus Project within two weeks after he began working on the project. Turner took no steps to object to the wage that

   he was receiving until the last week of his employment. He at that time asked the project supervisor what would happen if he tried to collect the prevailing wage, and he was told that others who tried to collect were immediately laid off.

   
   

7. The Florida International University Interrama Campus

   Project, designated State Project #BR-804-B, was a public work project. The prime contract for the project was for an amount in excess of $5,000. The prime contractor was Tom Murphy Construction Company, Inc. Sherba Brothers, Inc. was a subcontractor. The contracting authority, the State of Florida, Department of General Services withheld from its payments to Tom Murphy Construction Company, Inc. an amount of money equal to the claims of Campbell, Farina, and Turner.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties to this matter, and over the subject matter. Florida Statutes, Section 120.57(1).

   
   

9. James A. Campbell and Charles Anthony Farina were entitled to be compensated at the prevailing wage rate for laborers for work that they performed on the Florida International University Interrama Campus Project. Robert B. Turner was entitled to be paid at the prevailing wage rate for electrician foremen for work that he performed on the project.

   
   

10. James A. Campbell is entitled to $1,144 of additional compensation for work that he performed on the Florida International University Interrama Campus Project. Charles Anthony Farina is entitled to $2,127.25 of additional compensation for work that he performed on the project. Robert B. Turner is entitled to $5,858.50 of additional compensation for work that he performed on the project.

    
    

11. The Respondent has contended that Campbell, Farina, and Turner are estopped from seeking compensation based upon the prevailing wage rate because they accepted compensation at a lower rate without objection, after learning of their alleged entitlement to being paid at the prevailing wage rate. This contention is without merit. Florida Statutes, Section 215.19(3)(a) provides:

    
    

    "1. If the contractor or subcontractor fails to comply with this section relative to the payment of prevailing wages, any aggrieved employee on behalf of himself, and other employees similarly aggrieved on the same job, shall make such fact known to the contracting authority, the contractor and/or subcontractor by written sworn affidavit signed by each such aggrieved employee...

    2. The affidavit herein above provided shall be filed with the contracting authority within thirty days from the last date of alleged noncompliance, and in no event shall such affidavit be filed more than thirty days after the completion and acceptance of the public work contracted for."

    Nothing in the statute provides that an employee on a public work project is obliged to notify his employer that he will seek compensation at the prevailing wage rate prior to thirty days from the last date of noncompliance. The evidence in this case reveals the justification for the lack of such requirement. It appears that one of the Petitioners was fired due to his filing a claim to be compensated at the prevailing wage rate, and another was told by a representative of the Respondent that several employees had been fired for filing prevailing wage rate claims. When the Respondent contracted to perform work on the Florida International University Interrama Campus Project, it knew, or should have known, that it was obliged to pay its employees at the prevailing wage rates. The Respondent's failure to compensate its employees as required by law should not now serve to benefit the Respondent.

    
    

12. The purpose of laws such as Florida's Prevailing Wage Statute is to protect working people. This remedial purpose justifies a liberal interpretation of the provisions of the law. As was stated by the court in Bucci v. Village of Port Chester, 22 N. Y. 2d 195, 201; 292 N. Y. S.2d 393, 397 (1968):

    
    

    "We are here required to give effect to a unique statutory scheme, one that has as its entire

    aim the protection of working men against being induced, or obliged, to accept wages below the prevailing rate from a public employer. This court has more than once noted ... [the New York State prevailing wage statute] must be construed with the liberality needed to carry out its beneficent purposes... the present statute is

    an attempt by the State to hold its territorial subdivisions to a standard of social justice

    and their dealings with laborers, working men and mechanics. It is to be interpreted with a degree of liberality essential to the attainment of

    the end in view." (Citations omitted).

    
    

13. A final order should be entered directing that funds withheld by the contracting authority be disbursed to the Petitioners subject to all appropriate withholdings.

RECOMMENDED ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED:

1. That a final order be entered directing the contracting authority to release $1,144.00 of the amounts which it has withheld from the prime contractor to James A. Campbell, subject to all appropriate withholdings.

   
   

2. That a final order be entered directing the contracting authority to release $2,127.25 of the amounts which it has withheld from the prime contractor to Charles Anthony Farina, subject to all appropriate withholdings.

   
   

3. That a final order be entered directing the contracting authority to release $5,858.50 of the amounts which it has withheld from the prime contractor to Robert B. Turner, subject to all appropriate withholdings.

RECOMMENDED this 23rd day of March, 1977, in Tallahassee, Florida.

G. STEVEN PFEIFFER, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

James A. Campbell

2350 S. W. 18th Terrace Apartment B

Ft. Lauderdale, Florida 3315

Charles A. Farina

2243 N. E. 172nd Street, Apt. 4 North Miami Beach, Florida 33162

Robert B. Turner

1224 N. W. 17th Street

Ft. Lauderdale, Florida 33311

Arthur s. Clark, Jr., Esquire 1680 northeast 135th Street North Miami, Florida 33181

John W. Fowler, Esquire

114 Biscayne Building Miami, Florida

Kenneth Hart, Esquire General Counsel Department of Commerce

401 Collins Building Tallahassee, Florida 32304

Docket for Case No: 76-002089

Orders for Case No: 76-002089