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Amaya v. DGS Construction, LLC

United States District Court, D. Maryland

July 10, 2018

MARIO ERNESTO AMAYA, JOSE NORLAND GONZALEZ and JOSE AMADEO CASTILLO, Plaintiffs,
v.
DGS CONSTRUCTION, LLC and THE WHITING-TURNER CONTRACTING COMPANY, Defendants.

          MEMORANDUM OPINION

          THEODORE D. CHUANG, UNITED STATES DISTRICT JUDGE

         Plaintiffs Mario Ernesto Amaya, Jose Norlan Gonzalez, and Jose Amadeo Castillo, former carpenters employed by Defendant DGS Construction, LLC, d/b/a Schuster Concrete Construction ("Schuster"), on the construction of the MGM Resort Casino at National Harbor in Prince George's County, Maryland, have brought suit against Schuster and Defendant The Whiting-Turner Contracting Company ("Whiting-Turner") for violations of the Maryland Wage and Hour Law ("MWHL), Md. Code Ann., Lab & Empl. §§ 3-401 to 3-431 (West 2016), and the Maryland Wage Payment and Collection Law ("MWPCL"), Md. Code Ann., Lab & Empl. §§ 3-501 to 3-509, as well as for state law claims of breach of contract and unjust enrichment. Plaintiffs also seek a declaratory judgment that they are third-party beneficiaries of a Project Labor Agreement ("PLA") signed by Whiting-Turner and various trade unions. Plaintiffs allege that Schuster failed to pay Plaintiffs at the rate for carpenters for every hour worked and failed to pay certain fringe benefits for overtime work as required by the PLA. Pending before the Court are Plaintiffs' Motion for Class Certification and Motion for Leave to Amend the Complaint. For the reasons set forth below, both Motions are granted.

         BACKGROUND

         I. Project Pay Requirements

         Whiting-Turner served as the Project Contractor for the construction of the MGM Resort Casino at National Harbor ("the Project"). On April 30, 2014, Whiting-Turner and 16 trade unions entered into the PL A, which governed various aspects of the construction of the Project. The PLA defines the Signatories of the PLA as "all construction contractors and subcontractors of whatever tier engaged in onsite construction work within the scope of this Agreement that sign this Agreement or a letter of assent thereto." PLA ¶ 1.2, Motion for Class Certification ("MCC") Ex. 4, Joint Record ("J.R.") 46, ECF No. 118. The PLA further states that Whiting-Turner "shall require all contractors and subcontractors who have been awarded contracts for work covered by this Agreement" to execute a Letter of Assent binding them to the terms and conditions of the PLA "prior to commencing work." Id. ¶ 2.1.1, J.R. 48. In paragraph 12.5, the PLA also provides that:

In the event that the Project Contractor or a Signatory does not receive at least three bids on any trade package from contractors or subcontractors that are qualified to perform the work identified in the trade package and have the business resources necessary to perform the work and which may also have been prequalified prior to bidding ("Qualified Contractor") and are signatories to a collective bargaining agreement with a Union with jurisdiction over the work to be performed, then that trade package shall be exempt from the requirements of this Agreement; provided, however that the Agreement shall apply if the lowest bidder on the trade package is a Qualified Contractor and is a signatory to such a collective bargaining agreement.

Id. ¶ 12.5, J.R. 61. The same provision, however, clarified that:

Exemption from this Agreement shall not automatically relieve the successful bidder from complying with Project based requirements, such as, but not limited to, safety and quality programs. For all contractors working on the project, payment of prevailing wages and fringe benefit rates of the project as indicated on the Maryland Department of Labor, Licensing, and Regulation Informational Wage Rate for Prince George's County determined at the commencement of the Project, which Developer has voluntarily adopted for the Project, shall be a minimum requirement and contractors are free to provide wages and fringe benefits at rates in excess of such prevailing rates.

Id.

         On December 4, 2014, Schuster entered into an express contract with Whiting-Turner to perform concrete work on the Project. Since only one contractor with a signed collective bargaining agreement bid on the concrete contract, Schuster did not sign a Letter of Assent or similar document expressly agreeing to the terms of the PLA. However, as a subcontractor on the Project, Schuster was subject to the Whiting-Turner Project Manual, which established basic hourly rates and fringe benefit payments for various classifications of workers. For example, a "Carpenter" on the Project was required to receive a basic hourly rate of $26.81 and a fringe benefit payment of $8.19 per hour, while a "Laborer - Air Tool Operator" was required to receive an hourly payment of $19.92 and a fringe benefit of $2.94 per hour. J.R. 71. According to the Project Manual, these rates were derived from the Maryland Department of Labor Licensing and Regulation, Informational Wage Rates for Prince George's County.

         Prior to June 10, 2015, every new Schuster employee on the Project was first placed in a "provisional" status upon hiring. J.R. 285. While in this provisional status, employees were paid at the hourly rate for the type of work that they performed. For example, if an individual performed two hours of work as a laborer on a particular day, and six hours as a carpenter, that individual would be paid for two hours of work as a laborer and six hours as a carpenter, regardless of skill or experience. During this provisional period, Schuster supervisors would evaluate the employee's skills and performance and recommend a permanent job title. Once the employee was approved for a permanent job title, the employee was paid at or above the corresponding rate for all work. For example, if that same individual had a permanent title of carpenter and performed two hours of work as a laborer and six as a carpenter, that employee would be paid for eight hours as a carpenter.

         According to Schuster, it paid its employees overtime pay for all hours worked in excess of 40 hours per work week. However, Schuster did not pay fringe benefits for these hours. Therefore, a carpenter would be paid $26.81 in hourly pay and $8.19 in fringe benefits for the first 40 hours worked each week, but $40.22 in hourly pay and no fringe benefits for each hour worked in excess of 40.

         Schuster also maintained a system for auditing the hours worked by its employees on the Project. Schuster employees, known as "Work Reporters," distributed daily employee log sheets ("Daily EE Logs") to forepersons and other supervisors, with instructions to record the type of work performed by each employee and the duration of that work. J.R. 302. At the end of each day, employees were asked to sign the log, which contained the following statement, printed in English and Spanish: "[B]y signing, I am verifying the accuracy of hours worked outside my normal classification." See, e.g., J.R. 472. According to Schuster, employees were directed not to sign the Daily EE Log if it was missing information or was incorrect, and were instead instructed to open a "trouble ticket" to document the request and track it to its resolution. J.R. 302-03. The record contains 16 of these trouble tickets, which generally show Schuster's efforts either to correct errors such as missing or misclassified work hours, or to explain to employees that they were paid properly for their work. For example, on June 22, 2015, a Schuster employee complained that he was missing carpentry hours for work he performed on walls and columns. According to the ticket, a Schuster supervisor spoke with the employee and explained that he did not receive the carpenter rate for the work, which consisted of clamping together pre-fabricated panels, because it did not qualify as carpentry work.

         II. Plaintiffs and the Proposed Class

         Plaintiffs were each employed by Schuster during several months in 2015. Amaya began work on the Project as a provisional employee on May 11, 2015 and was upgraded to the job title of carpenter on June 15, 2015. While employed by Schuster, Amaya was paid as a carpenter for 952.39 hours and as a laborer for 23.73 hours.

         Gonzalez began work on the Project on April 27, 2015 as a provisional employee and was upgraded to carpenter on June 29, 2015. On May 20, 2015, while he was still classified as a provisional employee, Gonzalez refused to sign his Daily EE Log because he did not agree with the classification of 2.25 hours of work as laborer, work. Following an investigation, Schuster concluded that Gonzalez worked for two different crews that day, and that the time recorded under the laborer rate was actually spent as a carpenter. On July 2, 2015, Gonzalez was ...


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