Appeal from the Order of the Pennsylvania Prevailing Wage Appeals Board in case of In Re: Appeal of A.R. Scalise Company, dated April 15, 1977.
Timothy P. O'Reilly, for petitioner.
William G. Dade, Assistant Attorney General, with him Charles S. Solit, General Counsel, for respondents.
President Judge Bowman and Judges Wilkinson, Jr., Mencer, Rogers, Blatt, DiSalle and MacPhail. Judges Crumlish, Jr. and Craig did not participate. Opinion by Judge Blatt.
[ 38 Pa. Commw. Page 550]
A.R. Scalise Company (Scalise) appeals from a decision of the Pennsylvania Prevailing Wage Appeals Board (Board) which affirmed a determination by the Secretary of Labor and Industry (Secretary) that Scalise had failed to pay the prevailing wage to certain of its workmen and ordered it to compensate them for the amount of underpayment.
[ 38 Pa. Commw. Page 551]
In early 1974 Scalise bid on a contract for heat and ventilation work on a public works project for the West Mifflin Area School District (School District). Although the Instructions to Bidders provided that the Pennsylvania Prevailing Wage Act*fn1 (Act) was applicable to the contract, the specifications for the contract did not contain the then prevailing minimum wage rates. Scalise was the successful bidder and in June of 1974 he signed a contract which provided that if by mistake or otherwise a provision that was required by law to be part of the contract had not been inserted, "then upon the application of either party, the contract shall forthwith be physically amended to make such insertion."
Scalise subsequently began work on the project and in the last week of July of 1974, a Prevailing Wage Inspector Supervisor received a telephone call from a business agent of a steamfitter's union who alleged that the prevailing wage rates were not being paid to Scalise's workmen. As a result, the supervisor called the architect of the project who told him that the prevailing minimum wage rates had not been requested by the School District. On August 2, 1974, the architect requested the Secretary to determine the prevailing wage rates to be paid to the workmen employed on the project, and these were then sent to the architect who forwarded them to Mr. Scalise, the proprietor of Scalise, on August 13, 1974. On September 3, 1974, a Prevailing Wage Inspector visited the project and found that the rates were not posted as required by the Act. He also spoke with two workmen who indicated that they were being paid less than the minimum wage rates. When the inspector asked why these wages were not posted, the workmen referred him to a Mr. Davis
[ 38 Pa. Commw. Page 552]
who then produced a document from his truck which listed this rate and said he would post it. The inspector revisited the project on two subsequent occasions and found the wages properly posted. On October 29, 1974 the inspector gave Mr. Scalise, Jr., Mr. Scalise's son, audit sheets requesting information as to each workmen's hours and wages. The sheets were returned by Mr. Scalise, Jr., but the inspector was informed by the workmen that the hours listed on the sheets were not correct. As a result, the workmen then sent notarized letters to the inspector indicating the correct information. After another unsuccessful attempt to obtain payroll records from Scalise, the inspector and a Prevailing Wage Inspector Supervisor met with all of the workmen to obtain information concerning their hours, classifications and wages.
The inspector finally did secure the payroll records from Mr. Scalise on January 6, 1976. The supervisor then sent a summary sheet, showing the amount of underpayment of wages, to Scalise's attorney. Scalise requested a hearing, following which the hearing officer made findings of fact, conclusions of law and a recommendation that Scalise be found to have committed an unintentional violation of the Act. The Secretary adopted the hearing officer's findings that Scalise had committed an unintentional violation. The Secretary did not, however, afford Scalise a reasonable opportunity to pay the difference between the wage rate it had paid and the ...