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A & B ELECTRICAL CONTRACTING CO. v. COMMONWEALTH PENNSYLVANIA (05/03/74)

decided: May 3, 1974.

A & B ELECTRICAL CONTRACTING CO., INC., APPELLANT,
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF LABOR AND INDUSTRY, APPELLEE



Appeal from an Order of the Prevailing Wage Appeal Board in case of Re: Appeal of A & B Electrical Contracting Co., Inc. from final determination of the Secretary of Labor and Industry, February 22, 1973.

COUNSEL

William J. Brickley, with him Brickley, Frank & Kerwick, for appellant.

David L. Kurtz, Deputy Attorney General, with him Israel Packel, Attorney General, for appellee.

President Judge Bowman and Judges Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Judge Crumlish, Jr., did not participate. Opinion by Judge Rogers.

Author: Rogers

[ 13 Pa. Commw. Page 507]

This is an appeal by an employer from a decision of the Pennsylvania Prevailing Wage Appeals Board (board) affirming a final determination of the Secretary of Labor and Industry (secretary) directing the employer to pay certain employees a total of $10,357.35

[ 13 Pa. Commw. Page 508]

    in wages allegedly wrongfully withheld and barring the employer from future public work for a period of three years.

Under the Pennsylvania Prevailing Wage Act of August 15, 1961, P.L. 987, as amended, 43 P.S. § 165-1, et seq., successful bidders on public works are required to pay generally prevailing minimum wage rates as determined by the secretary. A. & B. Electrical Contracting Co., Inc. (employer) was awarded a contract to do the electrical work for a new school facility in Philadelphia, a project subject to the Act.

The secretary issued a prevailing minimum wage predetermination for the project,*fn1 fixing the starting rates of pay for electricians at $7.275 per hour and for apprentice electricians at $2.56 per hour. Shortly after the project was completed the employer received a letter from an Assistant Attorney General representing the Department of Labor and Industry, notifying it that an investigation and audit of its records "alleged that the prevailing minimum wages . . . have not been paid to the following workmen [naming them] who worked as electricians on the above-mentioned project since they were not registered as apprentices." The Department also sent a formal notice "that a hearing will be held for the purpose of receiving testimony that the general prevailing minimum wage rates predetermined by the Secretary of Labor and Industry have not been paid on the captioned project." An examiner for the Department conducted an evidentiary hearing, at which evidence was received not only as to the registration status and the wages paid to the employees identified in the notice of hearing, but also as to the failure of

[ 13 Pa. Commw. Page 509]

    the employer to post prevailing wages at the job site, his employment of a higher ratio of apprentices to journeymen than regulations allowed and his employment of a laborer in the performance of work which should have been performed by an electrician. The examiner found the employer in violation of the Pennsylvania Prevailing Wage Act and regulations of the Department in (1) failing to post, (2) employing unregistered apprentices, (3) employing apprentices out of proportion to journeymen, and (4) paying a workman laborer's wages for doing an electrician's work. The examiner's report concludes: "Upon reviewing the entire record presented in this proceeding . . . it is the recommendation of the Hearing Examiner that A. & B. Electrical Contracting Company, Inc., be found an intentional violator of the Prevailing Wage Act and should be barred from any future public work for three years." The secretary concurred and adopted the findings and recommendations of the examiner.

The employer appealed to the Prevailing Wage Appeals Board established by Section 2.2 of the Pennsylvania Prevailing Wage Act, 43 P.S. § 165-2.2. After argument, the board found the secretary's determination to be supported by substantial evidence and affirmed it. The Appeals Board specifically approved the examiner's findings that the employer used a person paid as a laborer to do an ...


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