STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROGER E. NEWBOLD, )

)

Petitioner, )

)

vs. ) CASE NO. 77-1207

)

ALLEN ELECTRIC COMPANY, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard on September 14, 1977, in the offices of the Department of Commerce in Lakeland, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings.

This case arose out of the claim by the Petitioner, Roger Newbold, that he had not received the prevailing wage while employed with Allen Electric Company, Inc., while working a contract let by the State for the addition to the Polk County Correctional Institution.

Newbold asserted that he was employed as a laborer during the construction of the building and that pursuant to wage rate 397-W, he was entitled to six dollars and fifteen cents ($6.15) per hour instead of three dollars and thirty- six cents ($3.35) per hour which he received from Allen Electric Company, Inc. Allen Electric Company, Inc., contended that the six dollars and fifteen cents ($6.15) per hour rate was the rate applicable to laborers doing building construction, and that Allen Electric never became involved in such work having been a contractor and subcontractor for heavy construction only on the project. Allen Electric Company further asserted that wage rate for laborers in heavy construction was three dollars and thirty-six cents ($3.36) per hour, the rate paid Newbold.

The issues presented are that work did Newbold perform, and what was the applicable wage rate for that work.

APPEARANCES

For Petitioner: Marvin Woods, Esquire

440 South Florida Avenue Post Office Box AR Lakeland, Florida 33801

For Respondent: David A. Perry, Esquire

Corporate Officer

Allen Electric Company, Inc 1271 LaQuinta Drive

Orlando, Florida 32809

FINDINGS OF FACT

1. Roger Newbold was employed by Allen Electric Company, Inc., as a laborer working on its contract with the State. Newbold was employed during two different periods. The first time was prior to January 1, 1977, and the second, from March 13, 1977, to May 22, 1977.

   
   

2. The addition to the Polk County Correctional Institution was bid in two phases; the first for heavy construction for site preparation, and the second, the actual building construction. Allen Electric Company, - Inc., had a contract from the general contractor during the first phase to install the main electrical distribution facilities on the site. All of this work was not associated with and carried on prior to the commencement of building construction. The heavy construction was in progress during Newbold's first period of employment with Allen Electric Company, Inc. Allen Electric Company was also a subcontractor with Delta Electric Company on the second phase of construction; however, Allen Electric Company did not do any building construction. They subcontracted with Delta to install secondary distribution lines and perimeter fence lighting on the site. See Delta Electric Company contract, late filed exhibit No. 7. Allen Electric Company did not go into the building with their workmen because their contract called for them to stop five

   (5) feet outside the building with the secondary distribution lines. All work and wiring done from this point into the building was carried on by Delta Electric.

   
   

3. Newbold's job during his entire employment with Allen electric was to dig ditches and lay conduit. The conduit runs then were reinforced with concrete poured over reinforcing steel. During his entire employment, he was involved in digging the necessary ditches, setting the reinforcing rods, and pouring the concrete. The rate for heavy construction laborers under wage rate 398-W filed as a portion of late filed exhibit No. 7 was three dollars and thirty-six cents ($3.36) per hour. The wage rate for laborers working on building construction pursuant to wage rate 397-W also filed as a portion of late filed exhibit No. 7 was six dollars and fifteen cents ($6.15) per hour.

   
   

4. Wage scale 397-W specifically states that it is applicable to nonresident building construction. All of the skills listed on the wage rate apply specifically to building construction except the general term "laborer." The record shows that the work done by Allen Electric Company, Inc., in the building construction phase was the same type of work undertaken by Allen Electric in the heavy construction phase. In both phases, Newbold was engaged in exactly the same duties. Newbold did not work on building construction but on laying conduit for secondary distribution systems and perimeter lighting systems during the second phase. All of this work took place outside of the building.

   
   

   CONCLUSIONS OF LAW

   
   

5. Section 215.19(1)(a), Florida Statutes, provides, in pertinent part, that all contractors on construction contracts in excess of $5,000 shall not pay less than the prevailing wage for similar skills or classification of work. The record revealed that Newbold dug ditches and laid conduit during heavy construction for a wage of three dollars and thirty-six cents ($3.36) per hour. The essence of Newbold's' claim is that he dug ditches and laid conduit during the building construction phase and therefore should have been paid the building construction laborer's rate of six dollars and fifteen cents ($6.15) per hour.

6. Either the wage rates as promulgated or in error, or it was determined by the Department of Commerce that laborers working on construction of the building are involved in different and more specialized tasks than laborers working on heavy construction. Otherwise, there can be no justification for paying an employee thirty-six dollars ($36.00) per hour to dig a ditch during site preparation and six dollars and fifteen cents ($6.15) per hour to dig the same type of ditch during building construction. The two classifications of laborers differ, and Newbold has not demonstrated that he qualifies for the classification of building construction laborer. Newbold's duties at all times remained the same. The differentiation of pay rates payable to laborers in heavy construction and those in building construction constitute a classification of laborers into two groups. Based upon Newbold's duties, it is clear that he was involved in heavy construction during the entire time of his employment. The wage' rate for heavy construction remained in full force and effect during the entire period of the project. Therefore, Newbold should have received and did receive payment as a laborer in heavy construction at the rate of three dollars and thirty-six cents ($3.36) per hour.

RECOMMENDATION

The Hearing Officer recommends that the claim of Roger Newbold be dismissed by the agency.

DONE and ENTERED this 5th day of 1977, in Tallahassee, Florida.

STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Marvin Woods, Esquire

440 S. Florida Avenue Post Office Box AR Lakeland, Florida 33801

David A. Perry, Esquire Corporate Officer

Allen Electric Company, Inc. 1271 LaQuinta Drive

Orlando, Florida 32809

Mr. Luther J. Moore Administrator of Prevailing Wage Department of Commerce

Division of Labor

1321 Executive Center Drive Fast Tallahassee, Florida 32301

Docket for Case No: 77-001207

Orders for Case No: 77-001207