ALJDEC decisions subject to certification as final

03F-2196-ROC · Registrar of Contractors · 2003-11-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 28, 2003. APPEARANCES: The Complainant was represented by its business agent and authorized employee, Stu Klettke. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Evidence and testimony were presented and, based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT

1. Complainant United Union of Roofers, Waterproofers and Allied Workers Local #135 (“Roofer’s Local #135”) is a labor union. Stuart Klettke is employed full time as business agent for Roofer’s Local #135 and is authorized to represent it for this proceeding. 2. Respondent Sargent Enterprises Inc. doing business as Best All Around Roofing, is the holder of License No. 099394, a Class C-42 residential roofing contracting license, issued by the Registrar of Contractors. 3. On or about June 4, 2003, the Complainant, through its business agent, Stu Klettke, filed a complaint with the Registrar of Contractors alleging that Sargent Quality Roofing, the holder of License No. ROC 099395, failed and refused to comply with a Collective Bargaining Agreement. The complaint further alleged that Sargent Quality Roofing violated the provisions of A.R.S. § 32-1154(A)(4), (5), (10), (12), (11), (14) and A.A.C. R4-9-131(5) and (7). 4. The official records of the Registrar of Contractors reflect that License No. ROC 099395 is issued to Sargent Enterprises Inc., doing business as Sargent Quality Roofing. 5. In response to the Complainant’s complaint, the Registrar of Contractors issued a Citation and Complaint against Respondent, not Sargent Quality Roofing, alleging that the Respondent violated the provisions of A.R.S. § 32-1154(A)(4), (5), (7), (10), (11), (12), (14), and (13); namely A.R.S. § 32-1166 and A.A.C. R4-9-131. 6. It is unclear why the Registrar of Contractors issued the Citation and Complaint against Respondent and its captioned license, rather than against Respondent’s license under its Sargent Quality Roofing business. 7. At the hearing, Complainant introduced into evidence as Exhibit 1 a Collective Bargaining Agreement executed by Ronald Sargent on behalf of Sargent Roofing and Mr. Klettke for the Complainant. 8. By letter dated April 22, 2003, Ronald L. Sargent, on behalf of Sargent Quality Roofing, requested that Complainant remove it from its member roster. 9. In response to that letter, Mr. Klettke responded to Mr. Sargent on behalf of Sargent Quality Roofing in an undated letter stating that the Complainant could not accept the request to terminate the Collective Bargaining Agreement because the request had not been received 60 days prior to the expiration of the term of the agreement. 10. Complainant alleges that Sargent Quality Roofing, as signatory to the Collective Bargaining Agreement, violated the provisions of the agreement by using non-union workers on at least one construction project in Mesa, Arizona, where union workers were purportedly paid wages, but that employee taxes, benefits and union fees were not paid. 11. It is determined that Ronald L. Sargent executed the Collective Bargaining Agreement on behalf of Sargent Quality Roofing. 12. In addition to the complaint filed with the Registrar, Complainant also filed similar charges against Sargent Quality Roofing with the United States Government National Labor Relations Board alleging violations under Section 8 of the National Labor Relations Act. 13. By letter dated July 29, 2003, the National Labor Relations Board refused to issue a complaint against Sargent Quality Roofing since all of the events that would establish a violation in that case occurred outside the Section 10(b) period of the Act. 14. The official records of the Registrar of Contractors reveal that the contracting licenses for Respondent and Sargent Quality Roofing have been suspended, effective November 13, 2003, because Sargent Enterprise Inc.’s corporate status has been dissolved as of January 14, 2003.

CONCLUSIONS OF LAW

1. The Citation and Complaint in this matter should be dismissed because it was issued against the wrong licensee. Such dismissal should be without prejudice to the Registrar of Contractors being permitted to refile a Citation and Complaint against Sargent Quality Roofing based upon the Complainant’s filed complaint.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that the Citation and Complaint in this matter be dismissed without prejudice to the Registrar of Contractors being permitted to refile a Citation and Complaint against Sargent Quality Roofing based upon the Complainant’s complaint, if warranted.

Done this day, November 14, 2003

______________________________________ Brian Brendan Tully Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2003, to:

Israel G. Torres, Director Registrar of Contractors ATTN: Jennifer Brown 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826