STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DOUGLAS RAYNOR, )

)

Petitioner, )

)

vs. ) CASE NO. 79-1155

)

SUNCOAST ELECTRIC, INC., )

)

Respondent, )

and )

)

DEPARTMENT OF LABOR AND )

EMPLOYMENT SECURITY, )

)

Respondent Agency. )

)

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 August 22, 1979. Upon its unopposed motion, made ore tenus at the hearing, Enterprise Building Company was dismissed as a respondent. No appearance was made on behalf of respondent agency, Department of Labor and Employment Security. The remaining parties had no objection to the hearing's taking place in Tampa, Florida. Petitioner was accompanied by counsel, but represented himself in these proceedings. Respondent, Suncoast Electric, Inc., was represented by counsel.

APPEARANCES

For Petitioner: Dominic Baccarella, Esquire

Suite 815, The Madison Building

412 East Madison Street Tampa, Florida 33602

For Respondent William E. Sizemore, Esquire Suncoast Shackleford, Farrior, Electric, Inc.: Stallings & Evans, P.A.

Post Office Box 3324 Tampa, Florida 33601

By affidavit dated December 20, 1975, petitioner alleged that he had worked 1,153 hours as an electrician while employed by respondent Suncoast Electric, Inc. (Suncoast) on the new Pinellas County Jail; that he had been paid at an hourly rate of $6.50; and that the prevailing wage for electricians was $10.20 per hour. By letter dated January 3, 1979, petitioner "updated" the number of hours he allegedly worked as an electrician to 1,379.5. At the hearing the parties stipulated that petitioner spent 1,456.5 hours working for Suncoast on the T and B Buildings at the Pinellas County Jail. Suncoast disputes petitioner's contention that he worked as an electrician for the entire time,

but concedes that petitioner worked as an electrician for some portion of the time.

FINDINGS OF FACT

1. Petitioner worked days as an apprentice electrician and studied nights for four years before receiving, on June 9, 1977, a certificate of completion of apprenticeship. Florida's Department of Commerce has designated petitioner a journeyman electrician. Petitioner has never taken any county's licensing examination. No such test is given in Hillsborough County where petitioner resides.

   
   

2. In July of 1977, petitioner began working for Suncoast at the rate of

   $4.50 per hour. The weeks later Suncoast raised his salary to $5.00 per hour. In November of 1977, petitioner was working for Suncoast at a job site known as Trinity Lakes when Daniel R. Friebus, than employed by Suncoast as superintendent at the jail project, directed him to report to the Pinellas County Jail Complex in Clearwater. Petitioner began work on the jail project, directed him to report to the Pinellas County Jail Complex in Clearwater.

   Petitioner began work on the jail project on November 28, 1977. He worked a total of 1,456.5 hours on this project, working through November 1, 1978.

   Respondent's exhibit No. 4. Petitioner also worked for Suncoast at other sites during this time. As of April 1, 1978, Suncoast paid him at an hourly rate of

   $5.34 at these other sites. From July 1, 1978, he was paid for work at these other sites at the hourly rate of $5.59. Suncoast paid him $6.50 per hour for his work on the jail project.

   
   

3. Prevailing wages for the jail complex construction project were $10.20 per hour for electricians and $6.50 per hour for laborers. Joint exhibit No. 1.

   
   

4. When petitioner began at the jail complex, he worked with Anthony Battagliola, whom Suncoast also originally paid at a laborer's rate. Stewart Lawton, another man doing electrical work for Suncoast on the jail project, was paid as a laborer, but later prevailed on his claim that he should have been paid as an electrician. Thereafter Suncoast paid Mr. Battagliola a lump sum of

   $2,500.00 in exchange for his forebearance from prosecuting similar claims.

   
   

5. Petitioner answered to Mr. Freibus or, in his absence, to Mr. Battagliola, while working for Suncoast on the jail project. Petitioner was himself left in charge of the project on occasion. Among other things, he had charge of installing the perimeter lighting. Eventually, he supervised two men working under his direction.

   
   

6. Petitioner used his own tools on the jail complex job. He laid conduit, cut and bent pipe, and pulled wire. Petitioner worked from blueprints and other drawings. Petitioner figured out how much pipe and wire were needed, measured materials, and made up joints called for by the drawings. He acted as a troubleshooter when lighting circuits were installed. This is journeyman's work, and not the work of a laborer. A small portion of petitioner's time on the job was spend "fishing" wire through pipes. Randall Wingert dug several trenches for laying conduit. He never saw petitioner do trenching but did see petitioner measure the depth of trenches already dug by somebody else using a ditch witch; and saw petitioner use a shovel when a ditch was too shallow. Mr. Wingert, not petitioner, brought necessary materials to the job site. In the course of doing his work, petitioner moved ladders.

7. Suncoast is not a union shop. Failure of a journeyman to do incidental chores like moving a ladder or using a shovel would have resulted in his discharge. It is not common practice for a journeyman to be paid a "split scale"; i.e., at one rate for work requiring a journeyman's skills and at another rate for unskilled labor necessarily incident to the skilled tasks.

   
   

   CONCLUSIONS OF LAW

   
   

8. Even though Section 215.19, Florida Statutes (1978 Supp.), has been repealed, it continues to govern these proceedings. Chapter 79-14, Section 3, Laws of Florida (1979). No party has suggested otherwise. In pertinent Part, Section 215.19, Florida Statutes (1070 Supp.), provides:

   
   

   (1)(a) Every contract in excess of

   $5,000.00 in amount to which the state, or any political subdivision of

   the state or other public agency or author- ity is a party which requires or involves the employment of free laborers, mechanics, or apprentices in the construction of any public building, or the prosecution and completion of any public work or for repairs upon any public building or public work, shall contain a provision that the rate of wages for all laborers land] mechanics . . . employed by any contractor or subcontractor . . . shall be not less than the prevailing rate of wages for similar skills or classification of work

   in the . . . civil division of the state in which the said public work is located.

   * * *

   (3)(a)1. If the contractor or subcon- tractor fails to comply with this section relative to the payment of prevailing wages, an aggrieved employee

   shall make such fact known to the contract- ing authority, the contractor and/or sub- contractor by written sworn affidavit . . . .

   * * *

   (b) After receipt of any such affidavit the contracting authority shall withhold from the contractor, until final determine- tion of the claim, an amount of money

   equal to the amount claimed in such affidavit to be due and unpaid and the contracting authority shall forthwith attempt to settle the dispute between the contractor or sub- contractor and the complaining employee

   and if the contracting authority is unable to effect such settlement the matter

   shall forthwith be referred by the contract- ing authority to the Division of Labor for determination.

   * * *

   (d) Upon settlement of the dispute by

   the contracting authority or upon determina-

   tion of the matter by the Division of Labor the contracting authority shall pay to the complaining employee such amount as shall be found to be due said employee and shall pay to the contractor the balance of the moneys withheld as hereinabove provided.

   
   

   In the present case, petitioner demonstrated that his work on the Pinellas County jail project called for his special skills as a mechanic, and involved no more time on unskilled tasks (all of which wore necessarily incident to his skilled work) than a journeyman generally spends.

   
   

9. For the 1,456.5 hours petitioner worked for Suncoast on the Pinellas County Bail complex, Suncoast paid petitioner $9,467.25, instead of prevailing wages for an electrician, which would have been $14,1356.30.

RECOMMENDATION

Upon consideration of the foregoing, It is RECOMMENDED:

1. That the contracting authority disburse $5,389.05 to petitioner Douglas Raynor.

   
   

2. That the contracting authority disburse all other moneys held on account of Mr. Raynor's claim to the appropriate contractor.

DONE and ENTERED this 21st day of September, 1979, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Dominic Baccarella, Esquire Suite 818, The Madison Building

412 East Madison Street Tampa, Florida 33602

William E. Sizemore, Esquire Post Office Box 3324

Tampa, Florida 33601

Mr. Douglas Raynor

8413 North Dexter Avenue Tampa, Florida 33604

Mr. Luther J. Moore Administrator of Prevailing Wage

Room 205, Ashley Building

1321 Executive Center Drive East Tallahassee, Florida 32301

Docket for Case No: 79-001155

Orders for Case No: 79-001155