HOWARD L. AYRES, )
vs. ) CASE NO. 77-482
Respondent. )
This matter came on for hearing in Winter Park, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer Robert T. Benton, II, on June 1, 1977.
For Petitioner: Mr. T. M. Woods, Esquire
For Respondent: Mr. Bromley Dyson
By affidavit dated February 21, 1977, petitioner alleged that respondent had paid him at less than the rate Section 251.19, Florida Statutes (1975) requires for carpenters to be paid on projects like the one petitioner worked on at Florida Technological University.
Respondent contracted to build a gymnasium and a science research center on the campus of Florida Technological University. petitioner was among the people respondent hired to perform this contract, which had project number BR-FTU-172. Petitioner began working for respondent on or about January 12, 1976. At that time, respondent's agent Ward hired petitioner as a carpenter's helper with the understanding that petitioner would be paid at the laborers' rate of five and thirty hundredths dollars ($5.30) per hour. The prevailing wage for carpenters on project number BR-FTU-172 was eight and thirty-five hundredths dollars ($8.35) per hour.
As reflected in their respective proposed recommended orders, the parties are in agreement that petitioner worked for respondent doing carpentry from March 31, 1976, until his employment ended, and it is so found as a fact. From March 31, 1976, until petitioner left respondent's employ, petitioner worked as a carpenter for one thousand five hundred eighty-three hours during regular working hours and for ten and a half hours overtime.
At the same time that petitioner was hired, one Lester Dove was hired as a carpenter. Petitioner worked with Lester Dove as a carpenter's helper for their first full two weeks on the job, at the end of which Lester Dove was laid off. Petitioner helped Lester Dove erect wooden forms for the pouring of concrete columns. Afterwards, he continued to work at erecting wooden forms for concrete columns. The forms consisted of two plywood halves, approximately sixteen feet long and weighing approximately one hundred pounds each. It took more than one man to stand the forms upright. After the forms were in place, they had to be clamped together
Carpenters built the column forms on the job site, but outside the building under construction. Petitioner worked inside, placing the forms in position. Sometimes the forms had to be shortened or otherwise altered "right there on the floor, not back at the saw." Testimony of Carlo Rinaldi. Generally, however, it was a matter of transferring measurements from blue- prints to the floor, nailing a template to the floor, fitting the form halves together around the template, clamping the form together, then checking to make sure the column was plumb and the corners were square.
After Lester Dove's departure, petitioner, Ralph Pierson, whom respondent hired as a carpenter, and one Carl, whom respondent hired as a laborer, worked together as a team erecting forms for pouring the concrete columns through March 30, 1977. During this time petitioner worked not as a carpenter, but as a carpenter's helper, paid at the prevailing rate for laborers. For the entire time petitioner worked for respondent, he was paid at the rate for laborers.
STATEMENT REQUIRED BY STUCKEY'S OF EASTMAN, GEORGIA v. DEPARTMENT OF TRANSPORTATION, 340 So.2d 119 (Fla. 1st DCA 1976
Paragraph one of respondent's proposed findings of fact has been adopted, in substance, as has been paragraph two of respondent's proposed findings of fact. Petitioner's testimony was that he worked for respondent from mid-January 1976 to mid-January 1977. Petitioner's composite exhibit No. 1 contains xeroxed reproductions of 49 paycheck stubs. Petitioner's affidavit alleges that he worked a total of 2,031 3/4 hours during regular working hours. Respondent, in paragraph five of its proposed findings of fact, concedes that petitioner worked 1,583 1/2 hours during regular working hours from and after March 31, 1976. Between January 12, 1976, and March 30, 1976, inclusive, there were 57 working days, or 456 working hours. Adding 456 to 1,583 1/2 yields 2,039 1/2. Thus the parties are only eight and one quarter hours, or approximately one working days apart and it is respondent who gives petitioner credit for the longer total work time. Petitioner claims more work time before March 31, 1976, than respondent concedes, but respondent's proposed finding of fact as to the starting date is more favorable to petitioner.
Paragraph two of petitioner's proposed findings of fact has been adopted, in substance.
Paragraph three of petitioner's proposed findings of fact has not been adopted because the testimony as to general carpentry, as opposed to erecting column forms, did not go to "the entire period of employment."
Paragraph four of petitioner's proposed fact findings has not been adopted, either as to regular hours or as to overtime hours. Respondent's concession of ten and a half hours overtime has been accepted as true.
Paragraph five of petitioner's proposed findings of fact has been adopted, in substance.
Paragraph one of respondent's proposed findings of fact has been adopted, in substance.
Paragraph three of respondent's proposed findings of fact has been adopted, in substance. Petitioner as much as conceded that he worked as a carpenter's helper or laborer until Dove left. After that, until the end of March, he continued doing essentially the same work. The hearing officer was faced with the question whether the three man team putting up column forms consisted of a carpenter and two helpers or a helper and two carpenters. Petitioner did not meet his burden to show that he was one of two carpenters rather than one of two helpers.
Paragraph four of respondent's proposed findings of fact has been adopted, in substance, except that no findings have been made as to the date of petitioner's first written claim to respondent or as to the contents of respondent's bookkeeping records, because no evidence was adduced on these matters.
Paragraph five of respondent's proposed findings of fact has been adopted, in substance.
CONCLUSIONS OF LAW
Pursuant to Section 215.19, Florida Statutes (1975), respondent should have paid petitioner at the rate of eight dollars and thirty-five cents ($8.35) per hour, instead of five dollars and thirty cents ($5.30) per hour for his work on and after March 31, 1976, during regular working hours.
Pursuant to Section 215.19, Florida Statutes (1975), respondent should have paid petitioner at the rate of twelve dollars and fifty-two and a half cents ($12.525) per hour, instead of seven dollars and ninety-five cents ($7.95) per hour for overtime work on and after March 31, 1976.
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).
DONE and ENTERED this 28th day of June, 1977, in Tallahassee, Florida.
ROBERT T. BENTON, II
Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
Mr. T. M. Woods, Esquire Suite 1465, CNA Tower
Mr. Bromley Dyson Dyson and Company Post Office Drawer F
Mr. Patrick G. Emmanuel, Esquire Post Office Drawer 1271 Pensacola, Florida 32596
Mr. Jack C. Koons
Mr. Luther Moore
