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LEONARD S. FIORE v. COMMONWEALTH PENNSYLVANIA (11/14/89)

decided: November 14, 1989.

LEONARD S. FIORE, INC., PETITIONER,
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF LABOR AND INDUSTRY, PREVAILING WAGE APPEALS BOARD, RESPONDENT



PETITION FOR REVIEW, (DEPARTMENT OF LABOR AND INDUSTRY).

COUNSEL

Richard DiSalle, Edmund M. Carney, R. Stanley Mitchel, Rose, Schmidt, Hasley & DiSalle (Roy A. Powell, Jones, Day, Reavis & Pogue, of counsel), Pittsburgh, for petitioner.

John T. Kupchinsky, Deputy Chief Counsel, Dept. of Labor and Industry, Harrisburg, for respondent.

Irwin W. Aronson, Jerome H. Gerber, Handler, Gerber, Johnston & Aronson, P.C., Harrisburg, for intervenor Pennsylvania State Bldg. and Const. Trades Council, AFL-CIO.

Barry and McGinley, JJ., and Narick, Senior Judge.

Author: Narick

[ 129 Pa. Commw. Page 585]

Leonard S. Fiore, Inc. (appellant) petitions for review of an order of the Department of Labor and Industry (Department),

[ 129 Pa. Commw. Page 586]

Prevailing Wage Appeals Board (Board) that affirmed an order of the Secretary of the Department (Secretary). The Board, affirming the Secretary's order, found appellant committed an intentional violation of the Prevailing Wage Act (PWA)*fn1 and, therefore, was subject to three years' debarment. We affirm.

Appellant, a construction contractor, is a general contractor on public projects. On several occasions, beginning as early as 1982, the Prevailing Wage Division (Division) of the Department investigated appellant's compliance with the PWA by visiting job sites, interviewing employees and auditing payroll records. In 1984, an issue arose in regard to appellant's fringe benefit calculations*fn2 for employees on three public work projects (projects).*fn3 On July 8, 1986, the Secretary issued notice to the appellant and the Division, wherein a hearing before an examiner was scheduled for August 15, 1986. The purpose of this hearing was to admit into the record a proposed stipulation of facts (proposed stipulation) between the parties, whereby appellant admitted to unintentional violations of the PWA, on the projects.

No representative of appellant attended the August 15, 1986 hearing, but three of appellant's workers, Michael Matis, James Termin and Terry Robinson (Robinson) (collectively, workers) from the projects appeared and objected to

[ 129 Pa. Commw. Page 587]

    the proposed stipulation. On December 9, 1987, the Pennsylvania State Building and Construction Trades Council (intervenor) filed a petition to intervene, which was granted. Another hearing was scheduled, so as to afford appellant an opportunity to cross-examine the workers who testified at the August 15, 1986 hearing. At the December 17, 1987 hearing, appellant was represented by counsel. Richard S. Fiore (Fiore), appellant's executive vice-president, testified. The workers were also cross-examined. After the hearing, the examiner recommended to the Secretary that the proposed stipulation be adopted.

On January 20, 1989, the Secretary rejected the examiner's recommendation. The Secretary found appellant's employee, Robinson, on the Penn State Student Apartment Project (Project 3), performed only carpenter work, but was classified and paid by appellant at the lower laborer's wage. The Secretary also found that appellant had misclassified Robinson for all 163 hours of work on Project 3, totaling an underpayment of $766.00. The Secretary thus concluded that appellant had intentionally violated the PWA and accordingly, imposed debarment as prescribed under Section 11(e) of the PWA, 43 P.S. ยง 165-11(e).*fn4

Appellant moved to disqualify (1) those Board members who (a) are employed by or who represent labor organizations which are members of intervenor, or (b) are employed by or represent construction industry employers who employ individuals represented by labor organizations which are members of the intervenor (a total of four members of the seven person board) and (2) one member, Augustus Hartinger, in particular, because of conflict of interest,

[ 129 Pa. Commw. Page 588]

    inherent partiality and the appearance of bias. The Board denied appellant's motion.

Appellant filed a timely appeal. The Board affirmed the Secretary's decision with two members of the Board dissenting from the holding of the intentional violation. This petition for review followed.

Appellant makes three arguments to this Court: 1) that the findings of fact are not supported by substantial evidence; 2) that the conclusion of law that appellant's violation was intentional is erroneous; and 3) that the Board abused its discretion violating appellant's due process rights.

The Secretary made the following findings which appellant argues are not supported by ...


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