On appeal from a final decision of the Department of Labor and Industry.
Matthews, Kole and Milmed.
The single issue before us on this appeal is whether the record-keeping and wage requirements of the Prevailing Wage Act, L. 1963, c. 150, as amended, N.J.S.A. 34:11-56.25 et seq. , apply to officers and directors of corporate contractors who perform work on public projects to which the act is applicable.
The essential facts may be briefly summarized. Appellant corporation, a construction firm, was awarded a contract by the City of Burlington for street reconstruction work. The specifications for the work, made part of the contract, provided in pertinent part that
The provisions of the New Jersey Prevailing Wage Act (Chapter 150, Laws of 1963, as amended by Chapter 64, Laws of 1974) are applicable to this Contract. All workmen employed by the Contractor or any subcontractor in the performance of this Contract shall be paid rates of wages not less than those stated in the Prevailing Wage Rate Determination of the New Jersey Department of Labor and Industry in Division 1, Section 10, of these Specifications. * * *
Appellant was asked by the Supervisor of the Public Contracts Section in the Wage and Hour Bureau of the Department of Labor and Industry (Department) to produce its time and payroll records in regard to its employees engaged in the performance of the public work project. Other Department representatives also made requests for the production of these records. Appellant apparently produced data regarding six of its employees engaged on the project, but refused to make available records regarding its two corporate officers-directors, Jacob Cugliotta, its president, and Santo Cugliotta, its secretary-treasurer, both of whom participated "in some of the manual work of their business" in addition to performing the corporation's supervisory functions. Appellant
argued in essence that the Prevailing Wage Act (act) did not apply to workers who are also officers-directors of a corporate contractor. The Assistant Commissioner of the Department did not agree. He informed appellant's counsel that it was the Department's firm position "that records must be kept for each workman employed in connection with a public work." Additionally, he denied counsel's request for "a formal administrative review" of the decision, and asked that appellant "make the records of all workers employed on this project available" for inspection by the Department. This appeal followed.
Appellant corporation contends that the term "workman" as used in the Prevailing Wage Act does not apply to "owner-operators of small family run businesses" such as it; that the Department's decision that it does apply is "an error of law which affects the rights of the Appellant to conduct its business"; that the decision is "arbitrary, capricious, characterized by abuse of discretion, and is an unwarranted exercise of discretion which has substantially prejudiced appellant's rights" and that the decision "violates the appellant's constitutional rights in that it is manifestly unreasonable, deprives the appellant of property without due process of law and/or equal protection of the laws, and exceeds the statutory authority of the Department as established by the Legislature."
We have considered these contentions and the arguments advanced in support of them in our review of the record submitted on the appeal. We find each of the issues raised by appellant to be clearly without merit. R. 2:11-3(e)(1) (D), (E).
The exclusion sought by appellant is nowhere to be found in the applicable statute. One of the sections of the act, N.J.S.A. 34:11-56.29, provides in clear terms that
Every contractor and subcontractor shall keep an accurate record showing the name, craft or trade, and actual hourly rate of wages paid to each workman ...