STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EMIL M. HERRON, )

)

Petitioner, )

)

vs. ) CASE NO. 77-480

)

STRATTON AND COMPANY, INC. )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Tampa, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer Robert T. Benton, II, on June 1, 1977. The parties were represented by counsel, as follows:

For Petitioner: Mr. James B. Loper, Esquire

101 East Kennedy Boulevard Tampa, Florida 33602

For Respondent: Mr. Dale W. Vash, Esquire

620 Twiggs Street

Tampa, Florida 33602

By affidavit dated March 1, 1977, petitioner alleged that he had worked for respondent as a carpenter on construction of a building which respondent had contracted with the City of Tampa to build, but that respondent had paid him wages less than the prevailing wages for carpenters "under Section 215.19 Florida Statutes, Determination No. 1110-[V] as issued by the Division of Labor of the Florida State Department of Commerce." In its response to the affidavit, respondent admitted it had employed petitioner in performance of a contract with the City of Tampa, but alleged that petitioner had worked as an assistant superintendent, rather than as a carpenter, and that petitioner had failed to file his affidavit in accordance with Section 215.19(3)(a)(2), Florida Statutes (1975). In addition, respondent attacked the prevailing wage determination as an invalid rule, and Section 215.19, Florida Statues (1975) as "unconstitutional on its face."

By motion for joinder of party, respondent sought to bring in the Division of Labor of the Florida Department of Commerce as a party in this proceeding; attached to the motion was a petition challenging the determination of prevailing wages. Respondent's motion for joinder of party was denied, but its petition attacking the rule was docketed as a separate cause, and petitioner has since intervened. Stratton & Company, Inc. v. Department of Commerce and Emil

1. Herron, No. 77-780R (DOAH; April 28, 1977). Originally, the final hearing in No. 77-780R was scheduled for the same time as the final hearing in the present case1 but, on joint motion of the parties, the final hearing in No. 77-780R has been held in abeyance, pending decision of State of Florida, Department of Commerce, Division of Labor v. Matthews Corporation, No. EE-374 (Fla. 1st DCA; petition for review filed Jan. 21, 1977).

   The validity of the prevailing wage determination was assumed for purposes of the hearing. At the close of the hearing, the parties stipulated that the recommended order should be drawn on the same assumption.

   
   

   FINDINGS OF FACT

   
   

   1. Respondent contracted to build a fire-police-safety training center (hereafter center) for the City of Tampa, and by reference to Determination No. 1110-V, which was physically attached to the contract, agreed to pay carpenters at the rate of eight dollars and thirty-one and a half cents ($5.315) an hour and laborers at an hourly rate of six dollars and fifteen cents ($6.15). Charles Shade worked for respondent as superintendent of the center job. Petitioner first worked at the center job site as a carpenter in the employ of Armco, one of respondent's subcontractors.

      
      

   2. On respondent's behalf, Charles Shade hired petitioner Herron when Armco laid him off. At that time, Mr. Shade said, "Well, I don't have much carpentry now," but offered petitioner a job as assistant superintendent at five and a half dollars ($5.50) per hour. Part of the inducement for petitioner to take this job was the prospect of eventually working as a superintendent for respondent, and after he began work, petitioner submitted a resume in letter form listing his considerable experience in the construction industry. This letter came in evidence as respondent's exhibit No. l.

      
      

   3. Petitioner testified that he began working for respondent in August of 1976, but, according to payroll records introduced as petitioner's composite exhibit No. 3, he began work on September 10, 1976. This conflict in the evidence has been resolved in favor of the payroll records. From September 10, 1976, through January 28, 1977, petitioner was paid at an hourly rate of five and one-half dollars ($5.50), for 504 hours worked during regular working hours; and at an hourly rate of eight and one-quarter dollars ($8.25) for sixteen hours worked overtime. After January 28, 1977, until his employment with respondent ended, petitioner was paid at an hourly rate of six dollars and fifteen cents ($6.15), for a total of 176 hours worked during regular working hours.

      
      

   4. During the course of his employment by respondent, petitioner performed a great variety of tasks, often using tools he brought with him and kept in his car. Hammers, pliers, framing square, chisels, wrenches, a small electric drill and a small power hand saw were among the tools he had in his car. He did rough and finish carpentry, ironworking, counted how much brick the masons laid, shoveled sand, did layout, discussed plans with subcontractors, supervised laborers, filled out payroll sheets in Mr. Shade's absence, ran the bobcat, oversaw the paving of the driveway and dealt with the subcontractors in Mr. Shade's absence. From time to time in the course of his employment, petitioner did miscellaneous carpentry, including layout, putting backing on walls, hanging outside doors, installing door frames, building platforms, constructing wood curbing on the roof, putting thresholds in, and grading with a transit and level. While doing carpentry, petitioner ordinarily worked with a carpenter's helper. Mr. Shade also performed a great variety of tasks, including miscellaneous carpentry.

      
      

   5. Petitioner's last full day of work was February 25, 1977, a Friday. The following Wednesday he returned to the center job site and told Mr. Shade he had filed the affidavit which initiated these proceedings. Mr. Shade told petitioner he could continue working if he signed a statement acknowledging that

      he was an assistant superintendent. Petitioner answered that he wanted to obtain legal advice before deciding and did no further work for respondent.

      
      

   6. Shade did not hire petitioner in an effort to obtain a carpenter's services at less than the prevailing wage. In preparing its bid for the center contract, respondent budgeted one thousand dollars ($1,000.00) for rough carpentry (wages for carpenter and helper) and one thousand dollars ($1,000.00) for finish carpentry (wages for carpenter and helper). Petitioner spent approximately five and a half months on the center job site, which would have been ample time to do all the carpentry budgeted and more, even without a helper if respondent had hired petitioner for that purpose. The fact that respondent hired a carpenter to work on the center project after petitioner's departure indicates that a significant amount of carpenter's work still remained to be done, however.

      
      

   7. Everybody on the job, including petitioner was paid for a full day on Christmas Eve, although only a half day was worked. On one unspecified date, everybody on the job, including petitioner, was paid a day's wages although everybody was sent home because it was too cold to work.

      
      

      CONCLUSIONS OF LAW

      
      

   8. Petitioner filed his affidavit with the City of Tampa in a proper and timely fashion. Pursuant to Section 215.19(3)(a)(2), Florida Statutes (1975), the affidavit had to be filed "with the contracting authority within 30 days from the last date of alleged noncompliance." At the hearing, respondent took the position that "the last date of alleged noncompliance" meant the first date of alleged underpayment, but the statute clearly contemplates the last date of alleged underpayment.

      
      

   9. The division of administrative hearings is part of the executive branch and, as such, lacks authority to declare any statute unconstitutional.

      
      

   10. Although respondent hired petitioner in good faith as a supervisory employee, petitioner performed a range of nonsupervisory tasks; and the whole purpose of Section 215.19, Florida Statutes (1975) would be frustrated if government contractors could perform their contracts by hiring "management trainees" at less than prevailing wages. On the other hand, Section 215.19, Florida Statutes (1975), does not purport to require record keeping in the detail which would be necessary to break down general supervisors' activities by trades for payroll purposes. A solution which avoids onerous record keeping requirements and preserves contractors' flexibility, while being fully consonant with the legislative intent of Section 215.19, Florida Statutes (1975), is to require contractors who fall under the provisions of Section 215.19 to pay supervisory personnel who also perform nonsupervisory work at least as much as the prevailing wage for laborers, the lowest paid generalists mentioned in the statute.

       
       

   11. In the present case, petitioner was paid for 504 regular hours at a rate less than the prevailing wage for laborers. Four of those hours were hours on Christmas Eve which he did not work. Petitioner also testified that he was paid for eight hours on a day it was too cold to work, but there was no evidence as to the rate at which petitioner was paid on the day it was too cold to work. Because the burden is on petitioner to show he did work for which he was underpaid, the day not worked must be deemed to have occurred during the period when petitioner was paid at the prevailing rate for laborers. These adjustments reduce to 492 the number of hours petitioner worked for five and one-half

       dollars ($5.50) an hour, which is sixty-five cents ($.65) less than the prevailing hourly rate for laborers.

       
       

   12. In addition, petitioner worked 16 hours overtime for which he was paid at an hourly rate of eight and one-quarter dollars ($8.25) which is ninety-seven and a half cents ($.975) less than the prevailing hourly overtime rate for laborers.

       
       

   13. Pursuant to Section 215.19(3)(d), Florida Statutes (1975), the difference between the wages respondent paid petitioner and the wages respondent should have paid petitioner ought to be paid to petitioner out of moneys held back pursuant to Section 215.19(3) (b) Florida Statutes (1975).

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

1. That the contracting authority, the City of Tampa, pay petitioner Herron the sum of three hundred twenty-five and forty hundredths dollars ($325.40).

   
   

2. That the contracting authority, the City of Tampa, pay respondent the balance of moneys heretofore withheld on account of petitioner's claim, pursuant to Section 215.19(3)(b) Florida Statutes (1975).

DONE and ENTERED this 30th day of June, 1977, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Dale W. Vash, Esquire 620 Twiggs Street

Tampa, Florida 33602

James B. Loper, Esquire

101 East Kennedy Boulevard Tampa, Florida 33602

Dan F. Turnbull, Jr., Esquire Florida Department Of Commerce

401 Collins Building Tallahassee, Florida 32304

Luther J. Moore

Administrator of Prevailing Wage Division of Labor

1321 Executive Center Drive East Tallahassee, Florida 32301

Docket for Case No: 77-000480

Orders for Case No: 77-000480