STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BARRY J. HEALY, )

)

Petitioner, )

)

vs. ) CASE NO. 75-2100

) GULF CONTRACTING INDUSTRIES, )

)

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 cause on March 23, 1976 at Titusville, Florida.

APPEARANCES

For Petitioner: Barry J. Healy

89 Fairglen Drive Titusville, Florida

For Respondent: Daryl J. Brown, Esquire

200 South Washington Boulevard Sarasota, Florida 33577

RECOMMENDED ORDER

By this petition, Barry J. Healy seeks to receive the difference in pay between the prevailing wages for masons and laborers during the period between February 20, 1975 and November 11, 1975. The Petitioner testified in his own behalf, three witnesses were called by Respondent, Gulf Contracting Industries (Respondent or Gulf) and five exhibits were admitted into evidence.

Petitioner was hired by Respondent's subcontractor, Dan McGee Masonry, for masonry work on the Brevard Correctional Institute contract as a laborer and was paid the prevailing wages of $4.05 per hour. During most of the time Healy worked for McGee he operated a saw cutting bricks and blocks. When cutting was not needed he "carried bricks and toted mud", and performed other work normally performed by laborers.

McGee rescinded the subcontract in June and the masonry work was continued by the prime contractor, Gulf. On Exhibit 1 Healy certified that he had been paid in full by Dan McGee Masonry for all wages earned through June 24, 1975.

He was employed by Gulf on June 25, 1975 as a laborer, assigned the primary job of cutting bricks and blocks, and paid the prevailing wage for laborers of $4.05 per hour.

While working for McGee, Healy was advised that if he didn't want to operate the saw there would be no work for him.

Healy was laid off on November 11, 1975 when the job was nearly completed and paid all wages due him on November 12, 1975. Thereafter he filed this claim for mason's pay plus 25 cents per hour less what he had been paid as a laborer. Healy worked a total of 689 hours for Gulf and was paid $2,816.80. This included 13 hours overtime.

Either while employed on the job or subsequent thereto Healy heard that cutting blocks and bricks was a mason's work and when they were required to do so were paid 25 cents per hour over regular mason's pay. He never saw a mason operating a saw and the three people cutting blocks on the job were all hired as laborers. Petitioner readily acknowledged that he had been paid for all the hours he worked at the prevailing wages for a laborer viz $4.05 per hour, both by McGee and Gulf. He has worked in construction for approximately one and one half years and readily acknowledged that approximately four years apprenticeship is required for one to become a mason. He made no claim to being qualified for any job other than laborer.

Gulf's construction superintendent who hired Healy as a laborer has been involved in construction work for twenty years. operating a saw is not a usual function of a mason as this job is normally performed by laborers. The only time he ever recalls 7 seeing a mason operate a saw was when working alone on a job without the assistance of a laborer. The witness never heard of a mason being paid 25 cents per hour extra when required to operate a saw.

In order for Healy to prevail in this proceeding he must show that the work he performed was not work normally performed by a laborer. This he has failed to do.

Also his claim against Gulf for the period he worked for McGee must fail.

At the time Healy was hired by Gulf the latter was withholding $15,000 owed McGee in the event any of McGee's employees had not been fully paid. By his acknowledgement (Exhibit 1) that he had been paid in full by McGee, Healy released Gulf from any potential claim Healy may have had against McGee.

From the foregoing it is concluded that Barry J. Healy was hired as a laborer1 performed work normally performed by a laborer, and was paid the prevailing wage rates prescribed for laborers for the construction of the Brevard Correctional Institute. It is therefore

RECOMMENDED that the claim of Barry J. Healy be dismissed.

DONE and ENTERED this 7th day of April, 1976 in Tallahassee, Florida.

K. N. AYERS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Barry J. Healy

89 Fairglen Drive Titusville, Florida 32780

Mr. Roger Strong

Gulf Contracting, Inc. P O. Drawer 4256 Sarasota, Florida 32578

Mr Luther J. Moore

Administrator of Prevailing Wage Department of Commerce

Division of Labor

1321 Executive Center Drive East Tallahassee, Florida 32301

Daryl J. Brown, Esquire

200 South Washington Blvd. Sarasota, Florida 33577

Docket for Case No: 75-002100

Orders for Case No: 75-002100