COMMONWEALTH OF MASSACHUSETTS




Suffolk, ss. DIVISION OF ADMINISTRATIVE LAW APPEALS


Peter Alves and Lighthouse Masonry, Inc.,

Petitioners,

v. Docket Nos. LB-06-466

Office of the Attorney General,
Fair Labor and Business Practices
Division,

Respondent.

Appearance for Petitioner:

Harvey B. Heafitz, Esq.

Heafitz & Sullivan
56 Chestnut Hill Ave
Brighton, MA 02135

Appearance for Respondent:

Bruce Trager, Esq.

Office of the Attorney General
One Ashburton Place
Boston, MA 02108

Administrative Magistrate:

Shelly Taylor, Esq.

DECISION

The Office of the Attorney General cited Lighthouse Masonry, Inc. ("Lighthouse") and Peter Alves for failure to pay prevailing wages to four employees on a public works project at King Phillip High School in Wrentham. Lighthouse and Alves appealed. Kimberly Fletcher, formerly First Administrative Magistrate of the Division of Administrative Law Appeals ("DALA"), heard the appeal on August 3, 2007 at DALA's offices at 98 North Washington Street, Boston. Before her decision was completed, Fletcher resigned her position. After conferring with the parties on July 10, 2008, I assumed this case pursuant to 801 CMR 1.01(11)(e).

The record closed on August 27, 2007. Twelve documents were admitted in evidence. Romeo D'Agostino and Michael Boussy, Senior Project Manager for Lighthouse, testified for the Petitioners. Steven Troiano and Scott Simpson testified for the Respondent, the Office of the Attorney General, Fair Labor and Business Practices Division. There are two tapes of the hearing and one tape of the July 10, 2008 status conference. I have reviewed all the evidence and arguments presented by the parties and render the following decision.

FINDINGS OF FACT

1. On December 2, 2004, the Division of Occupational Safety issued the schedule of Prevailing Wage Rates ("Wage Schedule") for a public works project at King Philip High School in Wrentham, as required by G.L. c. 149, § 27. The schedule lists the applicable wage rates and their effective dates for the various job classifications on the project.

2. The schedule includes rates for the classifications "brick/stone/artificial masonry (incl. masonry waterproofing)" and "laborer: mason tender." The Wage Schedule does not describe the job duties associated with the classifications listed. Ex. 8.

3. Lighthouse was a masonry subcontractor on the project. Lighthouse is a non-union shop. Boussy testimony.

4. David Cubas, Ivan Rivas, Antonio Ferreira and Walter Perdomo worked for Lighthouse on the King Philip High School project. Ex. 9.

5. Scott Simpson is an inspector with the Attorney General's Office. On November 21, 2005, he visited the site and spoke to the clerk of the works for the company, Joe Sullivan. Sullivan told Simpson that Antonio Ferreira had been paid $25.00 per hour for mason tender work on November 21, 2005 by mistake. Ex. 9. The applicable rate was $34.30 per hour. Ex. 8.

6. Lighthouse noted this error and corrected it before any citations issued. Simpson testimony.

7. Steven Troiano is a field investigator for the Masonry Industry Fair Wage Alliance. He visited the work site on several occasions and, with the permission of those in charge of the work site, he observed, interviewed and photographed several employees. Troiano Testimony.

8. On October 18, 2005, Troiano observed Davis Cubas working at the site over a period of about thirty minutes. Troiano saw Cubas preparing to put liquid on a scraper, working with a trowel, and scraping and smoothing masonry wall. He asked Mr. Cubas his name, title and hourly rate and took a photograph of him. Troiano testimony.

9. According to a March 23, 2007 opinion of the Commissioner of Occupational Safety ("Commissioner"), this work should be classified as Cement Mason/Plasterer. Ex. 11.

10. The records of the company show that on the date in question, Cubas was paid at the rate for a laborer: mason tender, and not at the higher rate for cement masonry/plastering. Ex. 8, Ex. 9.

11. On another visit to the site on December 13, 2005, Troiano observed Ivan Rivas at work for about thirty minutes. He saw Rivas on a ladder using a tool, a trowel and cement to patch wall block. He also observed Rivas rubbing the block using a hand stone. Troiano also noted that Rivas had a grinder on the floor. (Troiano testimony).

12. According to a March 23, 2007 opinion of the Commissioner of Occupational Safety, this work should be classified as Cement Masonry/Plastering. Ex. 11.

13. The records of the company show that on the date in question, Rivas was paid at the rate for a laborer: mason tender, and not at the higher rate for cement masonry/plastering. Ex. 8. Ex. 9.

14. On a March 24, 2006 site visit, Simpson observed Walter Perdomo washing a masonry wall with a power washer. Simpson testimony.

15. According to a March 23, 2007 opinion of the Commissioner of Occupational Safety, this work should be classified as Brick/Stone/Artificial Masonry. Ex. 11.

16. The records of the company show on the date in question, Perdomo was paid at the rate for a laborer: mason tender, and not at the higher rate for Brick/Stone/Artificial Masonry. Ex. 8. Ex. 9.

17. On July 12, 2006, the Attorney General's Office's Fair Labor and Business Practices Division cited Peter Alves and Lighthouse Masonry, Inc. for four counts of unintentional failure to pay prevailing wages to employees on the King Philip High School project. A penalty of $500 was assessed for each of the four violations. Ex. 1.

18. Lighthouse appealed the citations on July 14, 2006. Ex. 2.

19. After the appeal was filed, on or about November 2, 2006, counsel for the Respondent wrote to the Division of Occupational Safety requesting an opinion as to the scope of certain job classifications on the project. Respondent's attorney wrote: "The question is whether certain work," i.e. patching block walls, rubbing block walls, cutting concrete block joints on an interior wall by saw and grinder, washing brick exterior wall using water or acid, and using a brush and stone to smooth brick surface, "is under the jurisdiction of the masons/bricklayers or the laborers." Ex 10.

20. Emails subsequent to the opinion request, which the Commissioner characterized in his March 23, 2007 letter as "clarifying e-mails," are not in the record. Ex. 11.

21. The hearing on these appeals was initially scheduled to take place on December 1, 2006.

22. A request by Lighthouse and Alves for a continuance due to a change in counsel was granted, and the hearing was postponed to January 19, 2007.

23. On January 17, 2007, a request by the Attorney General's Office to continue the hearing in order to await the ruling of the Division of Occupational Safety was also granted.

24. In a March 23, 2007 letter, the Commissioner responded to the request for an opinion, stating in part:
I am writing in response to your request for this Office's written opinion regarding the applicability of the Massachusetts Prevailing Wage Law, G.L. c. 149, §§ 26 - 27…. You have asked for the appropriate job classification for the following tasks:

Patching Block Walls (workers patched interior concrete block walls with a trowel and jointer). The proper job classification for this work is Cement Mason/Plasterer.

Rubbing Block Walls (upon construction of the new wall, workers used a rubbing stone and/or grinder to rub the concrete block walls). The proper job classification for this work is Cement Mason/Plasterer.

Cut Joints (workers cut concrete block joints on new interior concrete block walls by saw or grinder). The proper job classification for this work is Cement Mason/Plasterer.

Rubbing, Cleaning Bricks (after installation of the brick-face, workers used water or acid to wash the brick, exterior wall; they also used a brush and stone to smooth the surface of the brick). The proper job classification for this work is Brick/Stone/Artificial Masonry (inc. Masonry Waterproofing).

Installing Wall Ties (wall ties were used to secure the brick face to the surface of an exterior wall; and ties were installed through use of a power screw gun). The proper job classification for this work is Brick/Stone/Artificial Masonry (inc. Masonry Waterproofing) (Ex. 11).

27. Appended to the opinion are the collective bargaining agreements which the Commissioner considered and which detail the various tasks associated with each position. Ex. 11.

28. Lighthouse is a non-union shop and not a party to these agreements. Boussey Testimony.

CONCLUSION AND ORDER

The citations issued should be affirmed unless "the aggrieved person demonstrates by a preponderance of evidence that the citation or order was erroneously issued," in which case the hearing officer may vacate or modify the citation or order. G.L. c. 149, § 27C(4).

Lighthouse does not dispute that it did not pay Antonio Ferreira the prevailing wage for work on November 21, 2005. Nor does the Attorney General's Office contest that this error was corrected before the citation was issued. Therefore, the citation pertaining to Ferreira (Citation No. PR060049) is affirmed.

As to the three remaining citations, this would be an easier case if the question at issue were simply 'should the employees have been paid at the higher wage rates?' The law is clear that "wage determinations and employment classifications are exclusively within the authority of the [Commissioner of Occupational Safety]." Office of the Attorney General v. Executive Office for Administration and Finance, Div. of Administrative Law Appeals et al., Suffolk Civil Action No. 2006-5393 (Memorandum of Decision and Order on Cross-Motions for Judgment on the Pleadings) (Cratsley, J., January 4, 2008). G.L. c. 149, § 27 (commissioner, subject to the provisions of section twenty-six, shall…forthwith…determine rates to be paid on each job to be employed in public works construction project). See also G.L. c. 149, § 26 (setting forth rules governing these determinations).

Also clear is the Commissioner's determination that David Cubas, Ivan Rivas and Walter Perdomo should have been paid at the higher rates for the work in question. The Attorney General's office did not seek restitution, however. In assessing only a civil penalty without a restitution order, presumably the goal was to punish an employer who failed to pay a rate which was known or at least knowable. The Attorney General asserts that the classifications in this case "are sufficiently precise to permit an average contractor to comprehend that employees who clean and repair masonry walls are masons." Respondent's Trial Memorandum, p. 9. The factual record does not support this contention.

Clearly, Lighthouse and Alves are on notice now of the proper scope of the job classifications at hand, as determined by the Commissioner, but the record does not show that they were on notice before the citations issued. This legislative scheme calls for applicable wage rates and job classifications to be established, and the wage rates published, before the contract is put out to bid. There is no evidence that that happened in this case. Although the rates were published, the prosecuting assistant attorney general sought clarification as to what the proper classifications are, not only after the project was under way, but also after the citations in question had been issued. Thus, there was, at a minimum, some ambiguity as to what the proper job classifications were.

The Commissioner determines the specific duties within a job classification; the duties are determined by reference to "collective agreements or understandings in the private construction industry between organized labor and employers" either in the town where the project is sited or in the construction industry at large. G.L. c. 149, § 26. This necessarily entails reference not only to the rates but to the job duties within each classification as they have been negotiated and agreed on. See Ex. 11 (March 23, 2007 opinion of Commissioner, appending trade autonomy sections of the "relevant" collective bargaining agreements). See also Ex. 3 (August 15, 2002 Division of Occupational Safety opinion on another classification issue, rendered "based on a review of the aforementioned collective bargaining agreements…")

Because the classifications are based on collective bargaining agreements to which Lighthouse is not a party, Lighthouse cannot be deemed to have known the proper classifications based on the terms of those agreements. Moreover, even if the agreements were made available, it is not the agreements per se but the Commissioner's reading of them which the contractor is bound to follow. Here, the contractor had no access to the Commissioner's opinion because it was apparently not rendered until after the citations were issued. In this context, it bears noting that corporate officials can face criminal liability for the very same violations alleged here, for which the maximum penalty is one year imprisonment and a $25,000 fine.

The Respondent points out that a statute which merely regulates business interests need not specify with great particularity the relevant considerations with respect to whether to revoke a license, so long as the board exercises its discretion fairly and does not act in an arbitrary and capricious matter. LaPointe v. License Bd. of Worcester, 389 Mass. 454 (1983), cited in Respondent's Trial Memorandum at p. 9. These principles and the circumstances in this case lead me to conclude that the citations were arbitrarily and therefore erroneously issued, and so must be vacated.

SO ORDERED.

DIVISION OF ADMINISTRATIVE LAW APPEALS

Shelly Taylor
Chief Administrative Magistrate

Dated: July 29, 2008


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