Opinion
February 4, 1999
Petitioner, a plumbing contractor, entered into a public works contract in May 1994 with the Rensselaer City School District to perform certain plumbing work involved in the construction of an addition to the Van Rensselaer School on Washington Avenue (hereinafter the project) in the City of Rensselaer, Rensselaer County. The contract set forth the prevailing wage rate petitioner was required to pay its employees under the Labor Law. Following an investigation by respondent during the summer of 1995, petitioner was issued notices of underpayment and alleged violations of certain provisions of the Labor Law. At the conclusion of a hearing, the Hearing Officer filed a report finding that petitioner underpaid prevailing wages and supplements totaling $35,076.74. The Hearing Officer found that petitioner's violation of the Labor Law was willful and recommended that petitioner pay such deficiencies plus interest at the rate of 16% and also pay a civil penalty of 25%. The Hearing Officer further recommended that petitioner be deemed ineligible to bid or be awarded a public works contract for a period of five years. Respondent thereafter confirmed the Hearing Officer's report and recommendation resulting in this CPLR article 78 proceeding.
Petitioner initially contends that its right to due process was violated by respondent's failure to give adequate notice of all of the charges prior to the hearing. We disagree. Labor Law § 220 Lab. (8) provides, in pertinent part, that "[b]efore issuing an order or determination * * * [respondent] shall order a hearing * * * at a time and place to be specified, and shall give notice thereof, together with a copy of such complaint or the purpose thereof, or a statement of the facts disclosed upon such investigation". The notice herein advised petitioner of pertinent facts disclosed through the investigation. It further informed petitioner of the charges to be resolved at the hearing, namely, whether petitioner failed to pay prevailing wage rates to workers on the project, whether petitioner's failure to pay prevailing wage rates was willful and whether petitioner falsified payroll records. Furthermore, although petitioner contends that the notice was insufficient because certain evidence was adduced at the hearing relating to the activities of its predecessor, in our view the notice's failure to specifically reference that evidence does not render the notice inadequate. Even though the notice did not indicate petitioner's predecessor by name, it set forth Labor Law § 220-b Lab. (3) (b) which, in substance, advised petitioner that a final determination of a violation by its predecessor could be considered. Accordingly, we find no violation of petitioner's right to due process.
Petitioner next contends that respondent's determination that it falsified payroll records is not supported by substantial evidence. We also find this contention unavailing. Marion Geleta, an investigator for the Department of Labor's Public Work Bureau, testified that copies of petitioner's payroll records for the project were provided by petitioner's manager, who certified the records as true. The records disclosed that petitioner's employees worked fewer than 40 hours per week. Geleta stated, however, that payroll stubs for two employees, Michael Meleca and Richard Shoemaker, revealed that they worked 40 hours per week, more than the amount represented on the payroll ledger. In addition, Meleca testified that he worked 40 hours per week. In view of the unexplained discrepancies in petitioner's payroll records, we cannot say that there is not substantial evidence supporting respondent's determination ( see generally, Matter of Lapeka Constr. Co. v. Sweeney, 236 A.D.2d 538). We have considered petitioner's remaining claims and find them to be without merit.
Peters, Spain, Carpinello and Graffeo, JJ., concur.
Adjudged that the determination is confirmed, without costs, and petition dismissed.