STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GENARO H. RODRIGUEZ, )

)

Petitioner, )

)

vs. ) CASE NO. 79-1224

)

1. ELECTRIC CORPORATION, )

   )

   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 case on 19 July 1979 at Miami, Florida.

   
   

   APPEARANCES

   
   

   For Petitioner: Genaro H. Rodriguez

   1800 N.W. 34th Avenue Miami, Florida 33125

   
   

   For Respondent: Stephen F. Kessler, Esquire

   1515 Northwest Seventh Street Miami, Florida 33125

   
   

   By Affidavit filed September 27, 1977 Petitioner, plus two others not here involved, notified the City of Miami that they were not paid prevailing wages for the work they performed on Fire Station #5 Job #B-2626. Petitioner contends he worked as an electrician and was paid laborer's wages.

   
   

   At the hearing the parties stipulated that the correct amount of the difference in what Petitioner was paid and the prevailing wages for an electrician, less deductible hospital insurance payments, is $2,429.65.

   Thereafter Petitioner testified and one witness was called by Respondent. There is no basic dispute regarding the facts.

   
   

   FINDINGS OF FACT

   
   

   1. Genaro H. Rodriguez, Petitioner, was employed by Y.A.C. Electric Corporation, Respondent, as an electrician on the City of Miami Fire Station #5 project during the period February 1976 through September 1977. He did not work on this project every working day during this period.

      
      

   2. During most of the period involved Petitioner held a Dade County license as a journeyman electrician. Before the job was completed he was licensed as a master electrician. Petitioner was the electrical foreman on the job for Respondent.

      
      

   3. This project came under the Prevailing Wage law.

   4. While working on this project Petitioner was paid $6.50 per hour and later $6.75 per hour. The prescribed prevailing wage for electricians on this project was $10.75 per hour. The difference between the amount Petitioner received while working on this project and the prevailing wage he should have received is $2,429.65.

      
      

   5. F. Bilboa and Associates was the general contractor on this project and

      Y.A.C. Electric Corporation was a subcontractor for the electrical work.

      
      

   6. At the commencement of the project Respondent advised its employees that they would be paid less than the prevailing wage while the work was in progress and when the work was completed they would be paid the difference in a lump sum between what they had been paid and the prevailing wage.

      
      

   7. Respondent had been a subcontractor with General Electric as prime contractor on an earlier prevailing wage job and pursuant to a similar agreement the prime contractor paid the lump sum difference to the workers to satisfy the prevailing wage law at the completion of the project.

      
      

   8. In this case, Respondent has been unable to collect what is owed him by the prime contractor and has, therefore, not fulfilled his agreement with Petitioner.

      
      

      CONCLUSIONS OF LAW

      
      

   9. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of these proceedings.

      
      

   10. Section 215.19, Florida Statutes, provides that prevailing wages shall be paid on certain contracts in which state agencies or municipalities are a party. The construction of City of Miami Fire Station #5 was such a project.

       
       

   11. The statute provides that upon receipt of a claim from an employee of the contractor that he was not paid the prevailing wage the contracting agency shall withhold payments from the contractor to satisfy this claim if found valid.

       
       

   12. Here there was no dispute regarding the validity of Petitioner's claim or the amount he was underpaid. The only problem was who had the obligation to pay Petitioner the wages owed him for the work he performed. Respondent apparently takes the position that since he hasn't been fully paid by the general contractor he shouldn't have to pay Petitioner.

       
       

   13. It was to avoid such problems that the prevailing wage law directs the contracting party to withhold payment until such claims are satisfied or paid from monies owed to the contractor.

       
       

   14. From the foregoing it is concluded that Genaro H. Rodriquez was paid

$2,429.65 less than prescribed by Section 215.19, Florida Statutes, during the period he worked on the City of Miami Fire Station #5 job. He was employed as an electrician, performed electrician's work but was not paid the prevailing wage for electricians. It is therefore

RECOMMENDED that Genaro H. Rodriquez be paid $2,429.65 from the amounts withheld from the contractor on this project.

Entered this 7th day of August, 1979.

K. N. AYERS Hearing Officer

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

(904) 488-9675

COPIES FURNISHED:

Mr. Genaro H. Rodriguez 1800 N.W. 34th Avenue Miami, Florida 33125

Stephen F. Kessler, Esquire 1515 Northwest Seventh Street Miami, Florida 33125

Docket for Case No: 79-001224

Orders for Case No: 79-001224