Judges: K. N. AYERS
Agency: Agency for Workforce Innovation
Latest Update: Feb. 01, 1978
Summary: Respondent must pay plumbers the prevailing wage.
77-0683.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
KENNETH C. TAYLOR, )
)
Petitioner, )
)
vs. ) CASE NO. 77-683
) COASTAL MECHANICAL CONTRACTORS, ) INC., )
)
Respondent. )
) DAVID MICHAEL GAMBUZZA, )
)
Petitioner, )
)
vs. ) CASE NO. 77-848
) COASTAL MECHANICAL CONTRACTORS, ) INC., )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above styled cases on September 7, 1977 at Sarasota, Florida. Since the two Petitioners were claiming the same wage classification from the same Respondent on the same job, the cases were consolidated for hearing, and only one Recommended Order will be submitted.
APPEARANCES
Kenneth C. Taylor 6890 Friendship Lane
Sarasota, Florida 33580
David M. Gambuzza
5807 28th Avenue Drive East Bradenton, Florida 33508
R. W. Furman, Sr., Esquire
301 Seventh Street, East Bradenton, Florida 33505
Nels Rasmussen
328 Six Avenue, West Bradenton, Florida 33505
By affidavits filed March 15, 1977 and April 8, 1977 Petitioners Taylor and Gambuzza claimed they worked on the Community Correctional Center, Manatee County, Florida Project Number DOR-60-30S during the period August through December, 1976. They contend they were employed in a job classification as plumbers and they were not paid the prevailing wage for plumbers. Taylor claims the prevailing wage for plumbers for the 138 hours he worked on the project, less the amount paid as laborer arid Gambuzza makes a similar claim for the 289 hours he worked on the project. Taylor claims underpayment of $563.04 and Gambuzza claims underpayment of $1278.12. Taylor and Gambuzza testified in their own behalf, R. W. Furman, Sr. testified on behalf of Respondent, and two exhibits were admitted into evidence.
FINDINGS OF FACT
Coastal Mechanical Contractors, Inc. subcontracted the plumbing and utility work on the Community Correctional Center, Manatee County, where Rasmussen Construction Company was the prime contractor.
Taylor and Gambuzza worked under the supervision and direction of a journeyman plumber. Two journeymen plumbers were employed by Respondent during this construction but only one was on the job site at any one time.
Neither Taylor nor Gambuzza are licensed plumbers and neither was hired as a plumber or paid plumber's wages. Both were hired as laborers under the Heavy Construction Schedule of Prevailing Wages in Exhibit 2. The wage for laborers in Exhibit 2 is $4.38 per hour. Both Taylor and Gambuzza were paid
$5.00 per hour.
As many as 4 or 5 men were employed at one time by Respondent as plumber's helpers including Petitioners. Under the direction and supervision of the journeymen plumber they dug trenches, ran pipes, and soldered connections. They worked on internal plumbing as well as on utility lines from the building to the sewer main. Petitioners were perhaps more experienced than the other helpers and, on occasion, were assigned a less experienced man as helper.
No evidence was submitted regarding the amount of time each Petitioner spent working inside the building or the amount of time spent working outside the building.
Both petitioners, according to their affidavits, commenced work in August, 1976. Taylor's last working day on the project was November 19, 1976 and Gambuzza's last day on the project was December 8, 1976. Taylor's claim was filed March 15, 1977 and Gambuzza's claim was filed April 8, 1977. No evidence was presented regarding the date of completion and acceptance of the project.
No pay records were presented showing the amounts paid Taylor and Gambuzza and no evidence was presented to rebut Petitioners' claims that they worked 138 hours and 289 hours respectively. The testimony that they were paid
$5.00 per hour was also unrebutted.
Respondent admitted that neither Taylor nor Gambuzza was paid the prevailing wage for plumbers and contends that they were hired under the Heavy Construction Prevailing Wage Schedule (Exhibit 2) as laborers. The prevailing wage for pipe layers is $5.80 per hour on this schedule.
Exhibit 1 is the schedule of prevailing wages for Building Construction. This schedule includes prevailing wages for all work done in the
building from the foundation up. Exhibit 1 provides the prevailing wage for laborers is $6.15 per hour.
CONCLUSIONS OF LAW
The facts in these cases were largely undisputed. Therefore the primary issue is whether, as a matter of law, the work performed by the Petitioners constituted work for which the prevailing wage for plumbers must be paid.
Absent evidence in the record regarding what constitutes a "plumber" Chapter 469 F.S. sheds some light. Section 469.01 thereof provides:
"Any person engaged in or working at the business of plumbing in cities of 7,500 population or more in this state, either as master plumber of employing plumber or as journeyman plumber, shall first receive a certificate thereof in accord-
ance with the provisions of this chapter."
Other provisions in Chapter 469 F.S. provide for examination to determine the applicant is qualified and the issuance of a certificate to a successful applicant.
The evidence that Petitioners were not licensed or certified journeyman plumbers was unrebutted as was the evidence that they were hired as laborers and not as plumbers, albeit they performed some work that a plumber would have performed had Petitioners not been present.
From the foregoing it is concluded that Petitioners were not plumbers as neither was a certified journeyman plumber and each worked under the supervision of a certified journeyman plumber.
From the evidence presented it is concluded that the majority of the work performed by Petitioners was inside the building. The work performed outside the building consisted of laying and connecting pipe. For work inside the building they are entitled to be paid the prevailing wage as shown in Exhibit 1, viz. $6.15 per hour for laborers. It would appear that they were entitled to be paid the prevailing wage for pipe layers for the utility work performed between the building and the, sewer main. Since no evidence was presented showing how much time Petitioners were engaged in inside work as opposed to outside work, no breakdown of the wages owed as laborer and pipe layer can be made.
From the foregoing it is concluded that Petitioners were hired as laborers and that the majority of the work they performed was inside the building. For this they were entitled to the prevailing wage, laborers at $6.15 per hour. It is therefore,
RECOMMENDED that Respondent be required to pay Kenneth C. Taylor for 138 hours at $6.15 per hour less the amount already paid (138 at $5 per hour) or
$158.70 and David Michael Gambuzza for 289 hours at $6.15 per hour less the amount already paid (289 at $5 per hour) or $332.35.
DONE and ENTERED this 4th day of October, 1977, in Tallahassee, Florida.
K. N. AYERS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
(904) 488-9675
COPIES FURNISHED:
Kenneth C. Taylor 6890 Friendship Lane
Sarasota, Florida 33580
David M. Gambuzza
5807 28th Avenue Drive East Bradenton, Florida 33508
R. W. Furman, Sr., Esquire
301 Seventh Street East Bradenton, Florida 33505
Nels Rasmussen
328 Sixth Avenue, West Bradenton, Florida 33505
================================================================= AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
KENNETH C. TAYLOR,
Petitioner,
vs. CASE NO. 77-683
COASTAL MECHANICAL CONTRACTORS, INC.,
Respondent.
/ DAVID MICHAEL GAMBUZZA,
Petitioner,
vs. CASE NO. 77-848
COASTAL MECHANICAL CONTRACTORS, INC.,
Respondent.
/
FINAL ORDER
The two (2) above-entitled and captioned prevailing wage rate claims came before the undersigned Director of the Division of Labor, Florida Department of Commerce, on the October 4, 197? Recommended Order of K. N. Ayers, Hearing Officer, Division of Administrative Hearings. Since the two Petitioners were claiming the same wage classification from the same Respondent on the same job, these cases were consolidated for hearing by the Hearing Officer below. For this reason, these two claims are both disposed of as consolidated cases in this Final Administrative Order. Having considered this matter and the Recommended Order, the undersigned makes the following Findings of Fact and Conclusions of Law, to-wit:
FINDINGS OF FACT
By affidavits filed March 15, 1977 and April 8, 1977, Petitioners Taylor and Gambuzza claimed they worked on the Community Correctional Center, Manatee County, Florida Project Number DOR-60-30S during the period August through December, 1976. They contend they were employed in a job classification as plumber and they were not paid the prevailing wage for plumbers. Taylor claims the prevailing wage for plumbers for the 138 hours he work on the project, less the amount paid as laborer and Gambuzza makes a similar claim for the 289 hours he worked on the project. Taylor claims underpayment of $563.04 and Gambuzza claims underpayment of $1278.12. Taylor and Gambuzza testified in their own behalf, R. W. Furman, Sr. testified on behalf of Respondent, and two exhibits were admitted into evidence during the hearing conducted by the Hearing Officer.
Coastal Mechanical Contractors, Inc. subcontracted the plumbing and utility work on the Community Correctional Center, Manatee County, where Rasmussen Construction Company was the prime contractor.
Taylor and Gambuzza worked under the supervision and direction of a journeyman plumber. Two journeymen plumbers were employed by Respondent during this construction but only one was on the job site at any one time.
Neither Taylor nor Gambuzza are licensed plumbers and neither was hired as a plumber or paid plumber's wages. Both were hired as laborers under the Heavy Construction Schedule of Prevailing Wages in Exhibit 2. The wage for laborers in Exhibit 2 is $4.38 per hour. Both Taylor and Gambuzza were paid
$5.00 per hour.
As many as 4 or 5 men were employed at one time by Respondent as plumber's helpers including Petitioners. Under the direction and supervision of the journeymen plumber, they dug trenches, ran pipes, and soldered connections. They worked on internal plumbing as well as on utility lines from the building to the sewer main. Petitioners were perhaps more experienced than the other helpers and, on occasion, were assigned a less experienced man as helper.
No evidence was submitted regarding the amount of time each Petitioner spent working inside the building or the amount of time spent working outside the building.
Both Petitioners, according to their affidavits, commenced work in August, 1976. Taylor's last working day on the project was November 19, 1976 and Gambuzza's last day on the project was December 8, 1976. Taylor's claim was filed March 15, 1977 and Gambuzza's claim was filed April 8, 1977. No evidence was presented regarding the date of completion and acceptance of the project.
No pay records were presented showing the amounts paid Taylor and Gambuzza and no evidence was presented to rebut Petitioners' claims that they worked 138 hours and 289 hours, respectively. The testimony that they were paid
$5.00 per hour was also unrebutted.
Respondent admitted that neither Taylor nor Gambuzza was paid the prevailing wage for plumbers and contends that they were hired under the Heavy Construction Prevailing Wage Schedule (Exhibit 2) as laborers. The prevailing wage for pipe layers is $5.80 per hour on this schedule.
Exhibit 1 is the schedule of prevailing wages for Building Construction. This schedule includes prevailing wages for all work done in the building from the foundation up. Exhibit 1 provides the prevailing wage for laborers is $.15 per hour.
CONCLUSIONS OF LAW
The facts in these cases were largely undisputed. Therefore, the primary issue is whether, as a matter of law, the work performed by the Petitioners constituted work for which the prevailing wage for plumbers must be paid.
Absent evidence in the record regarding what constitutes a "plumber", Chapter 469, Florida Statutes, sheds some light. Section 469.01 thereof provides:
Any person engaged in or working at the business of plumbing in cities of 7,500 population or more in this state, either as master plumber of employing plumber or as journeyman plumber,' shall first receive a certificate thereof ,in accordance with the provisions of this chapter.
Other provisions in Chapter 469, Florida Statutes, provide for examination to determine the applicant is qualified and the issuance of a certificate to a successful applicant.
The evidence that Petitioners were not licensed or certified journeyman plumbers was unrebutted as was the evidence that they were hired as laborers and not as plumbers, albeit they performed some work that a plumber would have performed had Petitioners not been present.
From the foregoing, it is concluded that Petitioners were not plumbers as neither was a certified journeyman plumber and each worked under the supervision of a certified journeyman plumber.
From the evidence presented, it is concluded that the majority of the work performed by Petitioners was inside the building. The work performed outside the building consisted of laying and connecting pipe. For work inside the building, they are entitled to be paid the prevailing wage as shown in Exhibit 1, viz. $6.15 per hour for laborers. It would appear that they were entitled to be paid the prevailing wage for pipe layers for the utility work performed between the building and the sewer main. Since no evidence was presented showing how much time Petitioners were engaged in inside work as opposed to outside work, no breakdown of the wages owed as laborer and pipe layer can be made.
From the foregoing, it is concluded and found that Petitioners were hired as laborers and that the majority of the work they performed was inside the building. For this they were entitled to the prevailing wage, laborers at
$6.15 per hour. It is, therefore,
ORDERED and ADJUDGED that Respondent shall pay to Kenneth C. Taylor for 138 hours at $6.15 per hour less the amount already paid (138 hours at $5 per hour) or $158.70, and that Respondent shall pay to David Michael Gambuzza for 289 hours at $6.15 per hour less the amount already paid (289 hours at $5 per hour) or $332.35.
DONE and ENTERED this 30th day of January, 1978 in Tallahassee, Florida.
Steven H. Campora, Director Department of Labor
Florida Department of Commerce Suite 200, Ashley Building 1321 Executive Center Drive,
East
Tallahassee, Florida 32304
(904) 488-7396
Kenneth C. Taylor 6890 Friendship Lane
Sarasota, Florida 33580
David M. Gambuzza
5807 28th Avenue Drive East Bradenton, Florida 33508
R. W. Furman, Sr., Esquire
301 Seventh Street, East Bradenton, Florida 33505
Nels Rasmussen
328 Six Avenue, West Bradenton, Florida 33505
Mr. Ken Oertel, Director
Division of Administrative Hearings Department of Administration
530 Carlton Building Tallahassee, Florida 32304
Mr. Jack C. Koons, Administrator Construction Administration Section Department of General Services
512 Larson Building Tallahassee, Florida 32304
Docket for Case No: 77-000683
Orders for Case No: 77-000683
