DocketNumber: No. CV89-0364799
Citation Numbers: 1991 Conn. Super. Ct. 2169, 6 Conn. Super. Ct. 444
Judges: AURIGEMMA, J. CT Page 2170
Filed Date: 3/26/1991
Status: Non-Precedential
Modified Date: 7/5/2016
Under the provisions of
The Deputy Commissioner found that ECI had disregarded its obligations under
ECI seeks to reverse the Deputy Commissioner's decision based on the following grounds: 1) its failure to pay overtime wages required by Connecticut General Statutes
The Deputy Commissioner's findings of fact are summarized below.
On June 11, 1986, ECI entered into a contract with the State of Connecticut to install electrical smoke and fire alarms in dormitories at the University of Connecticut in Storrs, Connecticut ("the UConn project"). Prior to entering into the contract ECI signed a "Contractor Wage Certification Form" in which it certified that it and its subcontractors would pay all workmen on the UConn project the wages listed in the schedule of prevailing rates, which was attached to the form. Those prevailing rates were set by the Labor Commissioner based on federal prevailing wage rates CT Page 2171 pursuant to Connecticut General Statutes
In 1983 the Labor Department sent ECI copies of three letters which provided that apprentices were to be paid based on a percentage of the journeyman's hourly wage rate plus the amount of fringe benefits listed on the prevailing wage schedule. ECI paid apprentices on the UConn project by adding the journeyman's wage rate to the fringe benefits rate and multiplying the total by the applicable apprenticeship percentage. ECI had calculated the wages due to apprentices in a similar manner on two state projects in 1984. The Labor Department reviewed the wage records on those projects and did not object to ECI's method of calculating payments to apprentices.
ECI commenced work at the UConn project in March, 1987. During the second or third week of that month, ECI advised its employees that it intended to suspend work on the UConn project from May 9th to May 18th. To make up for that week ECI requested its employees to work 48 hours per week for a five week period during which they would be paid for 40 hours per week. Workers would not be paid for the eight hours of Friday work in the paycheck for that week. Instead, they would be paid for a 40 hour work week at straight time during the period of the job shutdown.
During the seven week period from the week ending March 21, 1987, through May 2, 1987, ECI employees at the UConn project worked 10 hours per day Monday through Thursday and 8 hours per day on Friday, for a total of 48 hours per week. During this period, employees who worked 48 hours were paid only 40 hours in their weekly paycheck.
ECI's foreman at the UConn project maintained two sets of records concerning hours worked. One set failed to indicate that ECI employees had worked on Fridays during the period of the week ending March 28, 1987 through May 2, 1987. The other set of records did indicate the Friday hours worked during that period.
On April 23, 1987, Glen Remondi, one of the ECI employees at the UConn project, signed an affidavit which stated that he and other ECI employees had worked 48 hours per week for 6 weeks and had been paid only for 40 hours per week. The affidavit was subsequently delivered to the Labor Department which commenced an investigation. As a result of the investigation, the Labor Department determined that 17 ECI employees at the UConn project had not been paid overtime for hours worked in excess of 40 hour CT Page 2172 for a 7 week period, and that 8 ECI apprentice employees had been underpaid in the "total benefits" portion of their hourly wage rate. The total amount owed to said employees was $5376.19. The Labor Department requested ECI to issue checks in that amount to the employees in question, and it did so on June 26, 1987.
ECI claims to be aggrieved by the decision of the Deputy Commissioner based on the allegation that it is a contractor which does a substantial amount of work for the State of Connecticut and its political subdivisions. The Labor Department has admitted this allegation. Therefore, this Court finds that ECI is aggrieved by the decision of the Deputy Commissioner in that the placement of its name on a debarment list will cause it to lose revenues. ECI has a specific, personal and legal interest in the subject matter of the decision which will be specially and injuriously affected by the decision. Mystic Marinelife Aquarium Inc. v. Gill,
FAILURE TO PAY OVERTIME RATES
Connecticut General, Statutes
The Deputy Commissioner held that ECI's failure to pay its employees an amount equal to one and one-half times their regular hourly rate for weekly hours worked in excess of 40 did violate
Section
The Deputy Commissioner further found that overtime obligations are incorporated by reference in
When the four statutory provisions referenced in the foregoing paragraph are taken together it appears that the
FAILURE TO PAY THE APPROPRIATE AMOUNT TO APPRENTICES
The plaintiff claims that it did not fail to pay the appropriate amounts to apprentices because it had no knowledge of how those amounts should be calculated. It further claims that the Labor Department had previously failed to object to its method of calculation of payments to apprentices. ECI does not claim specifically that such failure estops the Labor Department from enforcing the law regarding payment to apprentices. However, the practical effect of ECI's argument is that such estoppel should be applied.
The Labor Department claims that the proper method of payment to apprentices is established in three sources: 1) the prevailing wage rate schedule issued to ECI for use on the UConn project; 2) three letters received by ECI in 1983 from the office of Job Training and Skill Development, Labor Department, and 3) Code of Federal Regulations, 29 D.F.R. 5.5(a)(4)(i).
On June 3, 1986, ECI's vice president signed and swore to truth of a Contractors Wage Certification Form in which ECI CT Page 2174 certified that all workers on the UConn project would be paid in accordance with the aforementioned prevailing wage rate schedule. That schedule contained a dollar amount for "hourly rate" and "total benefits" for 43 separate job classifications. The schedule provided that apprentices may be "paid the appropriate percentage of the prevailing journeyman rate . . . ". It also provided, "Any contractor or subcontractor not obligated by agreement to pay to the welfare and pension fund, shall pay this amount to each employee as part of his hourly wage." The Labor Department contends that the words "this amount" in the foregoing sentence refers to the total benefits amount. Thus, it argues, apprentices should be paid based on a percentage of the journeyman hourly rate and the full amount of the journeyman "total benefits". ECI paid apprentices based on a percentage of both the hourly rate and total benefits.
The provisions for payment of apprentices in the prevailing wage schedule can be interpreted in the manner urged by the Labor Department. However, the meaning of those provisions is not clear.
The three letters from the Office of Job Training sent to ECI in 1983 contain clear language concerning apprentice payment. Each letter provides:
The apprentices must be paid the percentage of the program completion rate which is $8.00 or the project journeyman's rate, whichever is higher, plus the amount of fringe benefits listed on the wage determination for the classification.
Each apprentice program sponsor must meet the requirements of Labor Department regulations on Equal Opportunity in Apprenticeship per C.F.R. § 29 Part 5.
The above language clearly establishes the payment method to apprentices which is urged by the Labor Department. The federal regulations reference therein also supports such payment method.
If the apprenticeship program does not specify fringe benefits, apprentices must be paid the full amount of fringe benefits listed on the wage determination for the applicable classification.
The federal regulations are applicable because
ECI argues that the adoption of the federal prevailing wage rates constituted an invalid regulation in violation of Connecticut General Statutes
Those cases held that "guidelines" or "directives" of a state agency were being applied improperly as regulations without having been properly adopted under
ECI argues, essentially, that the Labor Department should be estopped from applying the correct method of calculation of apprentice payments because it previously failed to object to ECI's method of apprentice payment. The Deputy Commissioner found that in 1984 a Labor Department wage enforcement agent had reviewed ECI's wage records on two state projects and had found no violations. ECI calculated apprentice payments on those projects in the same way it calculated them on the UConn project. The Deputy Commissioner further found that ECI had not produced any evidence that it had relied on the Labor Department's failure to object to its manner of calculating apprentice payments in 1984.
A party invoking the claim of estoppel against a government agency must prove the following: 1) that the agency did or said something calculated to induce the party to believe that certain facts exist and to act on that belief 2) that the party has changed his position in reliance on those facts, thereby incurring a loss Zoning Commission v. Sescynski,
A review of the record indicates that ECI failed to introduce any evidence as to the second through sixth elements set forth above. Therefore, this Court cannot find that the Labor Department's failure to correct ECI's method of calculating apprentice payments estops it from enforcing the proper method of payment.
FAILURE TO KEEP PROPER RECORDS
The Deputy Commissioner held that ECI failed to keep wage and hour records in accordance with the regulations issued by the Labor Commissioner to assure proper payments due to employees and that such failure constituted a disregard of its obligations under
ECI claims that failure to keep proper records is not a ground for debarment because no regulation concerning recordkeeping was promulgated pursuant to
Section
Each employer . . . shall keep . . . a true and accurate record of the hours worked by, and the wages paid by him to, each employee, as required by the applicable regulations issued by the labor commissioner . . . . Such records shall be open to inspection by the commissioner or his authorized representative at any reasonable time. Each employer . . . shall keep a copy of . . . the regulations issued by the labor commissioner posted at the place of employment where it can be read easily by the employees. Employers shall be furnished copies of orders and regulations on request, without charge. CT Page 2177
The regulations referred to in the foregoing statute were promulgated by the Labor Commissioner pursuant to
The provisions of regulations 31-60-12(a) and 31-60-12(c) appear to be sufficient in "manner and form" to assure proper payments to employees under
It is clear from the language of
The recordkeeping requirements of
Section
ECI has also claimed that it did keep accurate records, which did not misrepresent the hours worked and wages paid on the UConn project. The Deputy Commissioner found that ECI maintained two sets of records. One set contained no indication that ECI employees had worked on Fridays during the period of the week ending March 28, 1987 through May 2, 1987. The second set of records did indicate Friday hours during that same period. The Deputy Commissioner found that ECI showed only the first set to the Labor Department investigator, thereby misrepresenting the true hours worked and omitting any reference to the overtime hours worked. The record contains sufficient facts to support that
Based on the foregoing, the Deputy Commissioner correctly concluded that ECI had failed to maintain proper records and that such failure constituted the disregard of an obligation to employees within the meaning of
DISREGARD OF ECI'S OBLIGATIONS
ECI acknowledges that "disregard" means "to ignore, to overlook; to fail to observe." Black's Law Dictionary. Nevertheless, it argues, in essence, that an employer disregards its obligations to employees only when it wilfully or intentionally violates those obligations. Words in a statute are construed affording to commonly approved usage of language. Ganim v. Roberts,
If the legislature had wanted to condition debarment on wilful or intentional conduct, it could have done so. See Buonocore v. Branford, supra at 403. The legislature did require a finding that an employer "knowingly or willingly" employed workers at a wage rate less than the customary or prevailing rate before assessing a fine. Connecticut General Statutes
Based on the foregoing the Court finds that an employer disregards his obligations to employees within the meaning of
SELECTIVE PROSECUTION
ECI alleges that the Labor Department selectively enforced the debarment provisions of
In order to make out a prima facie case of unlawful selective prosecution, the defendant has the heavy burden of proving: 1) that he has been intentionally singled out and; 2) that the decision to prosecute was based upon an invidious or arbitrary standard such as race, religion or the infringement of a fundamental right. Oyler v. Boles,
The United States Supreme Court in Oyler stated:
The conscious exercise of some selectively in enforcement is not in itself a federal constitutional violation. Even though the statistics in this case might imply a policy of selective enforcement, it was not stated that the selection was deliberately based upon an unjustifiable standard such as race, religion or other arbitrary classification. Therefore, grounds supporting a finding of a denial of equal protection were not alleged.
In support of its claim of selective enforcement ECI argues that 33 other contractors also violated
ECI further argues that the Labor Department's impermissible discrimination against it is evidenced by the Department's attempt to ambush ECI. It claims that "[e]ven though the Labor Department was aware of the situation long before the completion of the job, there was no attempt to contact ECI to inform it that its overtime plan raised questions as to its permissibility until after it was completed." (Plaintiff's Brief, p. 2). The foregoing statement is not supported by the record, which indicates the following: CT Page 2180 The violations occurred during the period of March through May, 1987; The Labor Department did not receive the affidavit from Glen Remondi until May 12, 1987; The Labor Department investigation did not commence until June 1, 1987 and ECI was informed of the violations on June 16, 1987. Based on the foregoing, the Labor Department did not fail to inform ECI of ongoing violations.
ECI claims that its selection for debarment proceedings was discriminatory and invidious based on the involvement of the International Brotherhood of Electrical Workers (IBEW). The Deputy Commissioner's findings with respect to the IBEW are summarized below.
In 1985 the IBEW commenced a mandamus action to compel the Labor Department to enforce the debarment provisions of
ECI claims that the Labor Department investigator who investigated ECI in this case was "in contact with" Betty Tianti, then head of the Connecticut AFL-CIO, during the investigation. The record indicates that this contact consisted of one telephone conversation on a number of subjects, during the course of which Ms. Tianti was informed that an investigation of ECI had commenced. Ms. Tianti subsequently became the Labor Commissioner. She disqualified herself from hearing this case due to her previous connection with the AFL-CIO. The record does not indicate that Ms. Tianti had any further involvement with this case.
ECI makes much of the Labor Department counsel's request for the right to consult with Ms. Tianti, the Labor Commissioner, before reaching a settlement of this appeal. However, there is no indication that any settlement was reached, that Ms. Tianti approved or rejected a settlement, or even that she was consulted at all concerning a settlement. Moreover, any involvement by Ms. Tianti in this case after the Labor Department's complaint was filed against ECI is irrelevant to ECI's claim of selective prosecution because it occurred after the "prosecution" was CT Page 2181 commenced.
The Deputy Commissioner found that the Labor Department has an obligation to respond in a responsible manner to any constituent, including the IBEW, who seeks to ensure that the law is properly enforced. He further found that the IBEW had no role in the prosecution or disposition of this case. These findings are supported by the record.
ECI's claim that it was singled out for debarment because it was a non-union contractor, was further undercut by its admission at oral argument that most of the 33 other violators, for whom debarment could have been sought, were also non-union contractors.
The factual situation in this case is different from that in State ex rel. Mulhern v. McHenry,
For the reasons set forth above this Court finds that the Labor Department did not violate the standards set forth in
AURIGEMMA, J.
Mystic Marinelife Aquarium, Inc. v. Gill , 175 Conn. 483 ( 1978 )
Oyler v. Boles , 82 S. Ct. 501 ( 1962 )
United States v. Pablo Berrios , 501 F.2d 1207 ( 1974 )
State v. Murtha , 179 Conn. 463 ( 1980 )
Heffernan v. Slapin , 182 Conn. 40 ( 1980 )
Thornton Real Estate, Inc. v. Lobdell , 184 Conn. 228 ( 1981 )
Town of West Hartford v. Rechel , 190 Conn. 114 ( 1983 )
Persico v. Maher , 191 Conn. 384 ( 1983 )
Zoning Commission v. Lescynski , 188 Conn. 724 ( 1982 )
State Ex Rel. Mulhern v. McHenry , 31 Conn. Super. Ct. 172 ( 1974 )