Judges: STEPHEN F. DEAN
Agency: Agency for Workforce Innovation
Latest Update: Dec. 20, 1978
Summary: Contractor was found not to have paid prevailing wage.
78-1281.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
JOHN W. CULP, )
)
Petitioner, )
)
vs. ) CASE NO. 78-1281
) 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 Administrative Hearings. This case was presented on a claim filed by John W. Culp against Acco Mechanical Contractors, Inc. alleging that Acco had failed to pay the prevailing wage 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 established that the contract price of this project exceeded $5,000.0, and was subject to the provisions of Section 215.19, supra.
The claimant further established 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 far the employer and the wage he was paid. 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 exists between the wage paid the employee and the prevailing wage.
APPEARANCES
For Petitioner: Dewey H. Varner, Jr., Esquire
Culp and Fisher
3003 South Congress Avenue Palm Springs, Florida 33461
For Respondent: L. Byrd Booth, Jr., Esquire
Post Office Box 11089
Fort Lauderdale, Florida 33339
FINDINGS OF FACT
Acco Mechanical Contractors, Inc. was a subcontractor in the construction of the regional juvenile detention center located in Palm Beach County, Florida. The contracting authority for this facility was the Department of Health and Rehabilitative Services.
Contract for the construction let by the Department of Health and Rehabilitative Services is in excess of $5,000.00 and pursuant to the provisions of Section 215.19(1)(b), the Division of Labor established a prevailing wage to be paid different crafts and occupations in construction of said 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 July 17, 1977 and January 1, 1978, John W. Culp was employed by Acco Mechanical Contractors, Inc. on this project as a plumber. During this period of time, Culp was paid at the rate of $7.00 per hour for regular time and
$10.50 per hour for overtime. From January 1, 1978 until April 30, 1978, John
W. Culp was employed as a plumber at the rate of $7.50 per hour for regular time and $11.25 per hour for overtime. While making $7.00 per hour, Culp was paid
$3.07 per hour less than the prevailing wage for regular time hours worked and
$4.60 less than the prevailing wage for overtime hours worked. During the period January 1, 1978 until April 30, 1978, Culp received $2.57 less than the prevailing wage for regular time hours worked and $3.95 less than the prevailing wage for overtime hours worked.
The figures presented by the Respondent and those of the Petitioner do not agree concerning the number of hours worked. Exhibit 7 reflects that Culp worked a total of 856 hours at $7.00 per hour and 8 hours of overtime at $10.50 per hour. Exhibit 7 further reflects the Culp worked 683 hours at $7.50 per hour and 47.5 hours at $11.25 per hour. The amount Culp was underpaid prior to January 1 is equal to the sum of the regular hours worked times $3.07 and the overtime hours worked times $4.60 per hour. The amount Culp was underpaid subsequent to January 1, 1978, is equal to the sum of the number of regular hours worked times $2.57 and the number of overtime hours worked times $3.95. The amount that Culp was underpaid prior to January 1 is $2,664.72 and subsequent to January 1, $1,942.94 for a total of $4,607.66.
The Petitioner has 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 of money paid for said hours. This affidavit was filed within the time prescribed by statute.
Pursuant to the provisions of Section 215.19(3)(b), Florida Statutes, the Department of Health and Rehabilitative Services is currently withholding
$4,779.74 from Acco Mechanical Contractors, Inc. while awaiting the decision of this administrative hearing.
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 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.
Regarding the argument by 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 not his wage. Therefore, the amount paid by the employer to provide the insurance benefits should not be included in his wage nor deducted from the $4,607.66 due him.
RECOMMENDATION
Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer would recommend that the Division of Labor enter is order directing the contracting authority to pay the employee the sum of $4,607.66 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, in Tallahassee, Florida.
STEPHEN F. DEAN
Hearing Officer
Division of Administrative Hearings
530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675
COPIES FURNISHED:
Dewey H. Varner, Jr., Esquire Culp and Fisher
3003 South Congress Avenue Palm Springs, Florida 33461
L. Byrd Booth, Jr. Esquire Post Office Drawer 11089
Fort Lauderdale, Florida 33339
================================================================= AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY DIVISION OF LABOR
JOHN W. CULP,
Petitioner,
vs. CASE NO. 78-1281
ACCO, INC.,
Respondent.
/
FINAL ADMINISTRATIVE ORDER
Upon due notice to all parties in the above-styled cause, an administrative hearing was held on September 15, 1978, in West Palm Beach, Florida before Stephen F. Dean, the assigned hearing officer.
STATEMENT OF CLAIM:
This cause was presented on a claim filed by John W. Culp against Acco, Inc. alleging that he had been hired by Acco, Inc. in the capacity of a plumber and that Acco, Inc. had failed to pay him the prevailing wage for plumbers as required by Section 215.19, Florida Statutes.
The question presented in this case is how many hours the Petitioner, John
Culp, worked, the wage paid the Petitioner, and what, if any, difference exists between the wage paid the Petitioner and the prevailing wage.
FINDINGS OF FACT:
Acco, Inc. was a subcontractor in the construction of the regional juvenile detention 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 is in excess of $5,000.00 and, pursuant to Section 215.19, Florida Statutes, the Division of Labor established a prevailing wage to be paid different crafts and occupations in construction of said project.
The prevailing wage established for plumbers on this project was $10.07 per hour.
During the course of this project, Acco, Inc. acknowledged by affidavit that all persons in its employ were being paid the prevailing wage as required by law.
Between July 17, 1977 and January 1, 1978, John W. Culp was employed by Acco, Inc. on this project as a plumber. During this period of time, Culp was paid at the rate of $7.00 per hour. From January 1, 1978 until April 30, 1978, Petitioner was employed as a plumber at the rate of $7.50 per hour.
Exhibit No. 7, the Weekly Time Reports of John W. Culp, establish that Culp worked a total of 856 hours at the rate of $7.00 per hour and 8 hours at
$10.50 per hour. Furthermore, the Reports establish that Culp worked 683 hours at the rate of $7.50 per hour and 47.5 hours at $11.25 per hour.
Prior to January 1, 1978, the difference between what Petitioner was paid end the prevailing wage was $3.07. After January 1, 1978, the difference was $2.57.
The total difference between what Petitioner was paid and the prevailing wage for the time Culp was employed by Acco, Inc. is equal to 856 hours multiplied by $3.07, plus 683 hours multiplied by $2.57. The total difference is $4,383.23.
Petitioner has complied with the provision of Section 215.19(3)(a) 1 and 2, Florida Statutes, by filing an affidavit with the contracting authority stating the number of hours worked and the amount of money paid. This affidavit was timely filed.
Pursuant to Section 215.19, Florida Statutes, the Department of Health and Rehabilitative Services is withholding $4,779.74 from Acco, Inc. pending the outcome of this claim.
CONCLUSIONS OF LAW:
Petitioner has established that he was hired by and worked for Acco, Inc. as a plumber and that he was paid $7.00 per hour from July 17, 1977 until January 1, 1978 and that he was paid $7.50 per hour from January 1, 1978 until April 30, 1978. The prevailing wage for plumbers on the Juvenile Detention Center project was $10.07 per hour. Petitioner John W. Culp is entitled to the difference between what he was paid and the prevailing wage for the total number of hours worked by Petitioner at less than the, prevailing wage.
The Hearing Officer, in his Recommended Order, addressed the difference in pay between the regular time worked and overtime worked. However, Section 215.19, Florida Statutes, is void of any statutory language concerning overtime. The statute only requires that the employer be paid "not less than the prevailing wage". Absent a legislative directive in Section 215.19, Florida Statutes, concerning overtime, the employee is only entitled to the difference between what he was paid and what he should have been paid at the prevailing wage rate for the total number of hours worked at a rate less than the prevailing wage. Therefore, the Petitioner is entitled to $4,383.23.
Respondent's argument that the Division of Labor failed to properly adopt prevailing wage rates has been considered by the First District Court of Appeals of Florida in Vernon Neff, et al. vs. Biltmore Construction Company, Inc., 362 So.2d 442, (1st DCA Fla. 1978) and State of Florida Department of Commerce, Division of Labor vs. Matthews Corporation, 358 So.2d 256 (1st DCA Fla. 1978). The Court, in both cases, upheld the process by which the wage rates are adopted.
Respondent argues that additional insurance benefits should be included in the wage rate, but such benefits are not "wages". The amount paid by the employer to provide insurance benefits should not be included in Petitioner's wage nor deducted from the amount owed to the Petitioner based upon this claim.
It is, therefore, hereby
ORDERED and ADJUDGED that the contracting authority, the Department of Health and Rehabilitative Services, pay to the Petitioner, from the amount it is withholding in this claim, the amount of $4,383.23 and that the remaining amount held by the contracting authority, pursuant to this claim, be paid to Acco, Inc.
DONE and ORDERED this 19th day of December 1978 at Tallahassee, Leon County, Florida.
STEVEN H. CAMPORA, Director
Division of Labor
Florida Department of Labor and Employment Security
Suite 200 - Ashley Building 1321 Executive Center Drive Tallahassee, Florida 32301
Telephone No.: (904) 488-7396
COPIES FURNISHED:
Dewey H. Varner, Jr., Esquire Attorney for Petitioner
3003 South Congress Avenue Palm Springs, Florida 33461
L. Byrd Booth, Jr., Esquire Attorney for Respondent O'Neal and Booth, P.A.
Post Office Drawer 11088
Fort Lauderdale, Florida 33339
Luther J. Moore, Administrator of Prevailing Wage
Division of Labor
1321 Executive Center Drive, East Tallahassee, Florida 32301
Thomas A. Koval, Esquire Florida Department of Labor and Employment Security
401 Collins Building Tallahassee, Florida 32304
Stephen F. Dean, Hearing Officer Department of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304
Docket for Case No: 78-001281
Orders for Case No: 78-001281
