Electrical Contractors, Inc. v. Tianti, 14335

• Decision Date: 18 August 1992
• Docket Number: No. 14335,14335
• Citation: 613 A.2d 281,223 Conn. 573
• Parties: , 123 Lab.Cas. P 57,097 ELECTRICAL CONTRACTORS, INC. v. Betty L. TIANTI, Commissioner of Labor, et al.
• Court: Connecticut Supreme Court

Page 281

613 A.2d 281

223 Conn. 573, 123 Lab.Cas. P 57,097

ELECTRICAL CONTRACTORS, INC. v. Betty L. TIANTI, Commissioner of Labor, et al.

No. 14335.

Supreme Court of Connecticut.

Argued March 24, 1992.

Decided Aug. 18, 1992.

Wesley W. Horton, with whom were Susan M. Cormier, Hartford, and Bruce H. Stanger, West Hartford, for appellant (plaintiff).

William J. McCullough, Asst. Atty. Gen., with whom were Beth Z. Margulies, Asst. Atty. Gen., and, on the brief, Richard Blumenthal, Atty. Gen., and Charles A. Overend, Asst. Atty. Gen., for appellees (defendants).

Before PETERS, C.J., and CALLAHAN, GLASS, BORDEN and BERDON, JJ.

BERDON, Associate Justice.

The principal issue in this appeal is the determination of what constitutes a violation of General Statutes § 31-53 ¹ that The following facts are not disputed. On June 11, 1986, the plaintiff 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 (UConn project). The plaintiff signed a "Contract or Wage Certification Form" certifying that it and its subcontractors would pay all employees on the UConn project the appropriate wages as listed in the schedule of prevailing wage rates, which was attached to the form. The commissioner set the schedule of prevailing wage rates on the basis of the federal schedule of prevailing wage rates, which has been the basis for determining rates for public works contracts since 1977. The prevailing rate schedule for the UConn project contained an hourly wage rate for each job classification, as well as a separate amount under each classification for total benefits.

                would subject a public works [223 Conn. 575] contractor to placement on what is commonly referred [223 Conn. 576] to as the "debarment list" pursuant to General Statutes[223 Conn. 577]  § 31-53a. 2  Pursuant to § 31-53a, any person or firm [223 Conn. 578] appearing on such a list shall not be awarded a contract by the state for a three year period.   In this appeal, the defendant deputy  
                commissioner of labor, Lawrence S. Fox (deputy commissioner), in lieu of the defendant commissioner of labor, Betty L. Tianti (commissioner), who disqualified herself, determined that the plaintiff, Electrical Contractors, Inc., was subject to placement on the debarment list because it had disregarded its obligations under § 31-53, the prerequisite for debarment.   The trial court dismissed the plaintiff's appeal, 3 and we reverse
                

The plaintiff commenced work on the UConn project in March, 1987. A short time later, the plaintiff learned that it would have to suspend work from May 9 to May 18, 1987, a period encompassing six working days, to minimize noise while the students prepared for final exams. As a consequence, the plaintiff proposed the following to its employees: (1) that they work forty-eight hours per week, beginning with the week ending March 21, 1987, and continuing for six consecutive weeks; (2) that they be paid for forty hours of work for each of these forty-eight hour work weeks; and (3) that they receive regular pay for the extra hours worked when the job was shut down and no work was performed. The employees were informed that if they chose not to accept the proposal, they would be placed at another job site. Twelve of thirteen employees agreed to accept the proposal.

As a result, the plaintiff had its employees work forty-eight hours a week for seven weeks ⁴ to replace the seven working days that would be missed during the shut down period. The plaintiff kept three sets of records, one accurately disclosing the time worked and the two incomplete sets, each showing only partial hours worked per week. As for the eight registered apprentices on the UConn project, the plaintiff calculated their pay by adding the journeyperson's wage rate to the amount of total benefits and multiplying that amount by the percentage applicable to each apprentice.

Subsequently, one of the plaintiff's employees on the UConn project signed an affidavit stating that he and other employees had worked forty-eight hours per week during this period but had been paid only for forty hours. The affidavit was delivered to the defendant department of labor (department), which commenced an investigation. As a result of the investigation, the department initiated hearings.

The hearing officer determined that the plaintiff had violated § 31-53a by disregarding its obligations under § 31-53 to its employees in that it failed to pay them overtime for time worked in excess of forty hours per week for a seven week period, had failed to pay its apprentice employees 100 percent of the total benefits rate, and had failed to keep true and accurate records. The total amount found to be due to the employees was $5376.19. The plaintiff complied with the department's order to reimburse its employees the amount owed.

                The deputy commissioner adopted the findings of facts and decision of the hearing officer and ordered the name of the plaintiff's firm to appear on the debarment list.   No other firm had previously been placed on this list
                

The plaintiff appealed the decision of the deputy commissioner to the Superior Court. The trial court affirmed the deputy commissioner's decision and dismissed the plaintiff's administrative appeal. The court rejected the plaintiff's claim that the word "disregard," for the purpose of debarment pursuant to § 31-53a, requires willful or knowing conduct. The court then held that the plaintiff had disregarded its obligations under § 31-53 by (1) not paying its employees overtime wages, (2) failing to pay its apprentices the proper amount, and (3) failing to keep true and accurate records. The trial court further concluded that the commissioner had properly adopted the applicable federal wage rate determinations. Lastly, the court rejected the plaintiff's argument of selective prosecution.

In this appeal, the plaintiff essentially pursues the claims that it raised before the trial court. We affirm the trial court's conclusion that the commissioner needs to find only that a firm negligently disregarded its obligations in order to trigger debarment under § 31-53a. We reverse the trial court's conclusion that the plaintiff's failure to pay overtime wages constituted a violation of § 31-53(a) in that overtime is a rate "customary or prevailing" for the same work as that done on the UConn project. We reverse the trial court's conclusion that the plaintiff was put on notice as to the proper computation of apprentice wage rates. Because we agree with the trial court that the plaintiff failed to keep and maintain true and accurate records, we conclude that on remand the commissioner must determine whether that violation alone is a sufficient ground for debarment under § 31-53a. ⁵

I

"DISREGARD" OF PLAINTIFF'S OBLIGATIONON

The plaintiff first claims that any alleged violations of § 31-53 did not warrant debarment because they were not intentional or willful. Section 31-53a authorizes and directs the labor commissioner to place on the debarment list the names of any firm "found to have disregarded their obligations under said section 31-53 to employees and subcontractors...." Relying on the definition of "disregard" in Black's Law Dictionary (5th Ed.), the trial court concluded that an employer "disregards his The trial court properly accorded the word "disregard" its common, everyday definition. "Words and phrases of a statute are to be construed according to the commonly approved usage of the language." Ganim v. Roberts, 204 Conn. 760, 763, 529 A.2d 194 (1987); see General Statutes § 1-1(a). To support its position, the plaintiff claims that a different dictionary, the American Heritage Dictionary of the English Language, Second College Edition (1991), should be followed. The American Heritage Dictionary of the English Language defines "disregard" under its noun definition to mean "lack of thoughtful attention or due regard, esp. when willful." Even the plaintiff's definition, however, includes negligent conduct. Moreover, the plaintiff conceded at oral argument that its preferred construction of "disregard" as only willful conduct is strained. Accordingly, we adopt the commonly approved definition of "disregard," which does not require intentional or willful conduct.

                obligations to employees within the meaning of the § 31-53a when he ignores, overlooks or fails to observe such obligations."   Although the plaintiff agrees with this definition, it nonetheless claims that the trial court improperly construed the word to include violations that are not intentional or willful.   We disagree with the plaintiff
                

The plaintiff also argues that if we condition debarment on conduct that is neither intentional or willful, we would leave employers open to the drastic sanction of debarment for a minor error of a few dollars. The answer is that if the legislature had wished to condition debarment on intentional or willful conduct, then it could have said so. See Buonocore v. Branford, 192 Conn. 399, 403, 471 A.2d 961 (1984). For example, in subsection (b) of § 31-53, the legislature specifically required a finding that an employer "knowingly or willfully" employed workers at a wage rate less than the customary or prevailing rate before the employer would be subject to a fine. Furthermore, under such drastic circumstances the employer would still have recourse to the argument that the commissioner had acted arbitrarily and capriciously. We agree, therefore, with the trial court that conduct that is merely negligent will suffice to support a finding that an employer disregarded its obligations under § 31-53 in order to trigger debarment under § 31-53a.

II

FAILURE TO PAY OVERTIME WAGES

We turn next to the plaintiff's claim that the failure to pay overtime wages, although a violation of General Statutes § 31-76c, ⁶ does not constitute a failure to pay the customary or prevailing...