Judges: STEPHEN F. DEAN
Agency: Agency for Workforce Innovation
Latest Update: Jan. 05, 1979
Summary: Contractor was found not to have paid prevailing wage.
78-1280.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
CHARLES G. MATHIS, )
)
Petitioner, )
)
vs. ) CASE NO. 78-1280
) ACCO MECHANICAL CONTRACTORS, ) INC., )
)
Respondent. )
)
RECOMMENDED ORDER
This case was heard pursuant to notice in the Conference Room, Department of Health and Rehabilitative Services, 2701 Lake Avenue, West Palm Beach, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of the Division of Administrative Hearings. This case was presented on a claim filed by Charles G. Mathis against Acco Mechanical Contractors, Inc. that alleged that Acco had failed to pay the prevailing wage as required by Section 215.19 Florida Statutes.
Evidence was presented on behalf of the claimant substantiating the fact that he had been employed by Acco Mechanical Contractors, Inc. in the capacity of a plumber in the construction of a regional juvenile detention facility built under the contracting authority of the Department of Health and Rehabilitative Services. The claimant testified that the plumbing contract alone exceeded
$190,000.00 and that the project was subject to Section 215.19, supra. The claimant further established that that the prevailing wage was established by the Department of Commerce for plumbers in the amount of $10.07 per hour. The claimant introduced additional evidence regarding the number of hours which he had worked for the employer and the wage pay. The employer presented evidence concerning the number of hours the claimant had worked and the wage paid for those hours. The employer asserted certain legal defenses against the claim.
The factual question presented is how many hours the employee worked and the wage paid the employee; and what, if any, difference exist between the wage paid the employee and the prevailing wage.
APPEARANCES
For Petitioner: Charles G. Mathis, Pro Se
942 Montego Drive
West Palm Beach, Florida 33406
For Respondent: L. Byrd Booth, Jr., Esquire
Post Office Drawer 11089
Fort Lauderdale, Florida 33339
FINDINGS OF FACT
Acco Mechanical Contractors, Inc. is a subcontractor in the construction of a regional juvenile detection center located in Palm Beach County, Florida. The contracting authority for this facility was the Department of Health and Rehabilitative Services.
The contract for the construction let by the Department of Health and Rehabilitative Services was in excess of $5,000.00 and pursuant to the provisions of Section 215.19(1)(b), Florida Statutes, the Division of Labor established a prevailing wage to be paid different crafts and occupations in construction of this project.
The prevailing wage established for plumbers on this project was $10.07 per hour.
During the course of this project, Acco Mechanical Contractors, Inc. acknowledged by affidavit that all persons in its employ were being paid the prevailing wage as required by law.
Between April 10, 1977 and October 16, 1977, Charles G. Mathis was employed by Acco Mechanical Contractors, Inc. as a plumber on this project and paid at the rate of $7.50 per regular time hour and $11.25 per overtime hour. Between October 16, 1977 and June 25, 1978, Mathis was employed on this project as a plumber and paid at the rate of $8.25 per regular time hour and $12.37 per overtime hour.
The difference between the amount paid Petitioner for regular time hours worked and the prevailing wage is $2.50 per regular time hour during the period he was paid $7.50 an hour and $3.85 per hour for the period he was paid
$11.25 for each overtime hour. The difference between the amount paid Petitioner for regular time hours and the prevailing wage was $1.75 for the period of time he was paid $8.25 for regular time hour and $2.73 for the period he was paid $12.37 for each overtime hour.
The evidence conflicts concerning the number of hours the claimant worked. The Hearing Officer finds that the records of the Respondent Company, Exhibit 6, accurately reflects the number of regular and overtime hours the claimant worked on this project. Exhibit 6 reflects that the claimant worked
891.5 hours at a rate $7.50 an hour and 23 hours at the rate of $11.25 an hour, overtime. Exhibit 6 further reflects that the claimant worked 1,172 hours at a rate of $8.25 an hour and 76.5 hours at the rate of $12.37 per hour, overtime. The Petitioner was underpaid the amount of $2028.75 for regular time hours worked at the rate of $7.50 per hour; $2,051.00 for the hours worked at the rate of $8.25 an hour; $208.85 at the rate of $12.37 an hour; and underpaid $88.50 at the rate of $11.25 an hour, for a total of $4,577.10.
Petitioner complied with the provisions of Section 215.19(3)(a)1 and 2 by filing an affidavit with the contracting authority stating the number of hours worked and the amount paid for said hours. Said affidavit was filed within the time prescribed by statutes.
Pursuant to Section 215.19(3)(b), Florida Statutes, the Department of Health and Rehabilitative Services is presently withholding $5,844.56 from Acco Mechanical Contractors, Inc. while awaiting the decision in this administrative proceeding.
CONCLUSIONS OF LAW
The Petitioner has established his claim for the prevailing wage pursuant to the provisions of Section 215.19, Florida Statutes.
The Respondent has argued that the prevailing wage rates adopted by the division are not based on a survey as required by statute, but are based on union negotiated scale with the exception of Hillsborough County where the division has conducted a survey. The Respondent argues that this is a denial of equal protection. The argument by the Respondent that the agency failed to properly adopt the prevailing wage rates has been considered by the appellate court in another case, and the process by which the wage rates are adopted by the agency affirmed by the Court. The Respondent has asserted that the Petitioner failed to establish that the contract exceeded $5,000.00. The testimony of the Respondent was that the plumbing contracting loan exceeded
$190,000.00. The Petitioner served as foreman on this project, and therefore was aware of the plumbing contact price. His testimony in this regard was unrebutted by the Respondent.
Regarding the argument of the Respondent that additional perquisites provided by the employer should be included in the wage rate, such perquisites do constitute a portion of the employee's compensation; but it the employee's wage. Therefore, the amount paid by the employer to provide insurance benefits should not be included in his wage nor deducted from the $4,577.10 due him.
RECOMMENDATION
Based upon the foregoing Findings of Fact anus Conclusions of Law, the Hearing Officer would recommend that the Division of Labor enter its order directing the contracting authority to pay to the employee the sum of $4,577.10 and the remaining amount held by the contracting authority pursuant to this claim be paid to Acco Mechanical Contractors, Inc.
DONE and ORDERED this 1st day of November 1978, Tallahassee, Florida.
STEPHEN F. DEAN
Hearing Officer
Division of Administrative Hearings
530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675
COPIES FURNISHED:
L. Byrd Booth, Jr., Esquire Post Office Drawer 11089
Fort Lauderdale, Florida 33339
Charles G. Mathis 942 Montego Drive
West Palm Beach, Florida 33406
Docket for Case No: 78-001280
Orders for Case No: 78-001280
