OPINION BY
Allied Mechanical and Electrical, Inc. and State College Electrical and Mechani-cals, Inc. (hereafter collectively referred to as Allied) 1 petition for review of the decision and order of the Pennsylvania Prevailing Wage Appeals Board (Board), affirming the adjudication and order of the Secretary of the Department of Labor and Industry. In his order, the Secretary concluded that Allied had intentionally violated the Pennsylvania Prevailing Wage Act (Act) 2 by failing to pay the prevailing wages due its workers on certain public works projects and debarred Allied from contracting for any further projects for a period of three years.
For the period from July, 2003 through October, 2004, Allied was a contractor or subcontractor on five different public works projects. 3 Following requests from the awarding agencies, the Department of Labor and Industry’s Bureau of Labor Law Compliance (the Bureau) issued prevailing wage rate predeterminations for each of the projects. These predetermina-tions were included by reference in the specifications for each project and were not challenged under Section 8 of the Act, 43 P.S. § 165-8. The Bureau commenced an investigation of Allied in 2003 following a routine site visit by Todd Burns, an investigator with the Bureau. By letter to Allied dated June 25, 2003, Mr. Burns requested copies of payroll records and timesheets and further requested that Allied conduct a self-audit. Allied subsequently provided the requested records. Shortly thereafter, Mr. Burns left his employment with the Bureau and the file was reassigned to Randy Liddle, another investigator for the Bureau.
Upon his review of the file, Mr. Liddle noted several inconsistencies in the records provided by Allied, including hours blackened out on timesheets and altered pay rate codes, i.e., some of the classifications reported by the workers were altered from the higher-paying electrician classification to the lower-paying laborers’ classification.
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By letter dated August 28, 2003,
The parties met again on October 7, 2003. At this meeting, Mr. Good and Mr. Horvat provided the Bureau’s representatives with corrections to the altered time-sheets, noting the worker’s name, the amount of hours changed back to the electrician classification and the amount of these changes. Mr. Good and Mr. Horvat also provided the Bureau’s representatives with a draft list of sixteen separate activities which they believed fit within the definition of laborers’ tasks on a prevailing wage project. Further, it appears that there was some discussion at this meeting of Allied’s alleged policy of regularly paying its workers two hours per day at the laborers’ rate. Mr. Gioiosa noted that such a policy would be unreasonable. Following this meeting, Mr. Liddle and Mr. Gioiosa decided to expand the investigation to include other projects as well as a random selection of worker timesheets. 5 Mr. Liddle thereafter selected eleven Allied workers at random and requested the necessary time and payroll records.
Subsequent to this meeting, Allied instituted a policy specifically providing that workers were to be paid based on the work that they were performing. 6 Allied also requested that the Bureau provide it with a list of activities by wage classifications or direct it to where such information could be obtained. The Bureau did not respond to this request. Rather, the parties proceeded to meet again in January of 2004. Mr. Horvat described this meeting as “a little bit more contentious,” especially with respect to its request for a list of activities by wage classifications. (R.R. at 308a). At one point, Mr. Horvat indicated that Mr. Gioiosa simply stated “you tell me what it is and then we’ll see if we agree.” Id.
By letter dated January 26, 2004, Mr. Horvat again provided Mr. Liddle with a list of activities/tasks which Allied considered to be unskilled, laborer tasks. This letter was forwarded to Mr. Gioiosa for a response. In a response letter dated March 18, 2004, Mr. Gioiosa informed Mr. Horvat that neither the Act nor its regulations provide a specific list of work activities associated with different classifications. Rather, Mr. Gioiosa noted that such activities are determined by “custom and usage in the building and construction industry.” (R.R. at 551a). Nevertheless, Mr. Gioiosa noted that of the fourteen
Ultimately, on February 11, 2005, the Bureau issued an order to show _ cause charging Allied with intentionally failing to pay their workers the predetermined prevailing minimum wage rates for the aforementioned public works projects. Allied filed an answer and the case was assigned to a hearing officer. 7 The hearing officer conducted hearings in this matter on July 28 and 29, 2005. At these hearings, the Bureau presented the testimony of four former workers for Allied during the time period in question, James Smith, Jeffrey Wills, Gregory Walls and Edward MacDonald. Mr. Smith worked for Allied from February of 2003 through July of 2004. During this time, Mr. Smith worked on the Pollock Commons, Fairmount and North High School projects. Despite denying that he engaged in any activities that he considered laborer activities, such as core drilling, trenching, unloading of trucks, site clean-up, demolition or safety watch, Mr. Smith indicated that his time-sheets reflected a 6:2 ratio daily, i.e., six hours at the skilled/plumbers’ rate and two hours at the laborers’ rate.
Mr. Smith further indicated that he was told by his supervisors to record his time in that manner. Mr. Smith noted that Mr. Good had advised him and other workers that Allied utilized the 6:2 ratio in order to “keep [Allied] a little bit more competitive, as far as getting prevailing rate jobs.” (R.R. at 38a). In January of 2004, Mr. Smith indicated that a supervisor advised him not to continue utilizing the 6:2 ratio, but to “juggle [the] time around” so that in the end he still had thirty skilled/plumbers’ hours and ten laborer hours a week. (R.R. at 39a). On cross-examination, Mr. Smith acknowledged that his current employer pays utilizing a 7:1 ratio.
Mr. Wills commenced his employment with Allied in May of 2002.
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During his interview prior to his hiring, Mr. Wills indicated that Mr. Good or another Allied representative informed him that the company practice was to pay six hours mechanic rate and two hours laborer rate daily on prevailing wage projects in order to “stay competitive against the union companies.” (R.R. at 75a). During his employment, Mr. Wills worked on the North High School project for a total of forty-six hours, receiving two hours at the laborers’ rate for each day he was there. Mr. Wills admitted to doing limited work which he considered laborers’ work on this project. Mr. Wills also worked on the Fairmount High School project for two days, receiving two hours at the laborers’ rate for one day and the full plumbers’ rate the second
Mr. Walls worked for Allied from July of 1999 through September of 2004. During this time, Mr. Walls worked on the Pollock Commons, Fairmount and North High School projects. Mr. Walls conceded to performing several hours of laborers’ work Fairmount and North High School projects, but he could not recall what type of work he did at the Pollock Commons project. Nevertheless, Mr. Walls indicated that he kept track of his time “[s]ame as everybody else, six and two ... six hours mechanical, two hours labor.” (R.R. at 112a).
Mr. MacDonald worked for Allied from September of 2003 through October of 2004. During his interview prior to his hiring, Mr. MacDonald indicated that he was informed by Mr. Good that “on a rated job, we would be paid six and two and regular pay on all non-rate jobs ... six hours mechanical and two hours labor.” (R.R. at 177a). During his employment, Mr. MacDonald worked on the Pollock Commons and Fairmount High School projects, although he could not recall what type of work he did on the latter. Mr. MacDonald conceded to performing several hours of laborers’ work on the Pollock Commons project. Nonetheless, as to this project, Mr. MacDonald indicated that he filled out his timecard the same every day, six hours mechanical and two hours labor. However, Mr. MacDonald indicated that Allied changed its policy several months before his termination, noting that he was told by the applicable project managers “not to write six and two, to break it up so it still averaged to [sic] 30 and 10.” (R.R. at 181a).
The Bureau further presented the testimony of Mr. Liddle. Mr. Liddle described his investigation of Allied, which is discussed above. The Bureau next presented the testimony of A. Robert Risaliti, an administrative law officer for the Bureau for approximately thirty-one years. Mr. Risaliti indicated that the prevailing wage rates established for the subject projects were adopted from collective bargaining agreements and that none of the rates had been appealed. Mr. Risaliti thereafter testified as to custom and usage in the trades, noting that on plumbing or electrical job sites, laborers routinely perform demolition work, unload trucks to stockpiles, dig trenches, drill common holes and perform clean-up work. On cross-examination, Mr. Risaliti acknowledged the lack of general information available to employers to determine if a specific task should be classified at the laborers’ rate or the skilled rate.
Finally, the Bureau presented the testimony of representatives of the plumbers, electricians and laborers’ unions as expert witnesses. These witnesses included Terry E. Peck, Jeffrey Miller and John Miller, respectively. Mr. Peck testified that plumbers routinely engage in such tasks as transporting material from a stockpile to the installation point, cutting/drilling holes, performing core drilling, installing pipe hangers and performing some clean-up and demolition work. Mr. Peck noted that laborers traditionally dig and backfill trenches and carry waste materials to a dumpster. Mr. Peck disagreed with Mr. Risaliti that drilling a multi-purpose hole would be laborers’ work, but noted that such drilling would generally be performed by the general contractor.
Jeffery Miller testified that electricians cut their own holes, perform core drilling, occasionally unload electrical supplies from a truck, occasionally dig trenches and occasionally perform demolition work, whereas laborers normally unload trucks and dig trenches. Mr. Miller disputed that demolition work involving electrical materials could be performed by laborers and that laborers drill multi-purpose holes, noting
In opposition, Allied presented the testimony of Mr. Good. Mr. Good stated that he was originally hired as the operations manager and was currently Allied’s vice president. Mr. Good admitted telling prospective employees that Allied paid at a 6:2 ratio for prevailing wage work, noting that he was unaware that paying at that ratio was inappropriate. Mr. Good noted that immediately prior to the Bureau’s investigation of Allied, several employees were disgruntled over the issue of fringe benefits and a reduction in pay. Mr. Good emphatically denied telling employees to lie to the Bureau if questioned. At the October 7, 2003, meeting with Mr. Liddle and Mr. Gioiosa, Mr. Good indicated that he and Mr. Horvat offered to pay all disputed hours at a specific job site at the skilled rate.
Prior to this meeting, on the way to the meeting site, Mr. Good conceded that he and Mr. Horvat put together a list of what they considered to be laborers’ tasks. However, Mr. Good noted that neither Mr. Liddle nor Mr. Gioiosa addressed the specific tasks on this list. Instead, Mr. Good indicated that Mr. Gioiosa indicated that he did not see the 6:2 ratio based on this list and that “he could see seven and one.... ” (R.R. at 278a). Mr. Good also noted that the 7:1 ratio was repeated as being acceptable at the follow-up meeting in January of 2004. Prior to this meeting, Mr. Good noted that Allied changed its policy regarding the 6:2 ratio and required workers to record the number of hours and the type of job they were actually performing each day, with such hours and work verified by the project foreman. Mr. Good conceded that the laborers’ rate was the lowest rate on the predeterminations.
Allied next presented the testimony of Mr. Horvat. Mr. Horvat noted that he was initially hired as a project manager and currently served as commercial operations manager. Mr. Horvat admitted that Allied was using the 6:2 ratio for prevailing wage work at the time he was hired. Similar to Mr. Good, Mr. Horvat indicated that he did not think that such a ratio was inappropriate. Mr. Horvat noted that Mr. Good never informed any Allied employee to lie to Bureau representatives. Mr. Hor-vat echoed Mr. Good’s recollection of the meetings with Mr. Liddle and Mr. Gioiosa, including Allied’s multiple requests for a list of laborers’ classifications. On cross-examination, Mr. Horvat indicated that Allied never paid the difference identified at the October 7, 2003, meeting.
Allied next presented the testimony of Ray Zettle, Jr., an Allied employee for ten months with twenty years experience in the construction industry. During his employment as a laborer with another employer, Mr. Zettle indicated that he performed such tasks as saw cutting, trenching, patching, offloading trucks and moving materials. Mr. Zettle also worked for other employers that engaged in prevailing wage work, noting that each employer used ratios for completing time-sheets relating to such work. However, when he was hired at Allied, he denied being told a specific manner to fill out a timecard and instead indicated that the hours vary according to the work that is being performed. Finally, Allied presented the testimony of Charles Ward, an employee for almost a year with twenty-five years experience in the construction industry. Mr. Ward noted that laborers’
Following these hearings, on January 20, 2006, the Secretary issued an adjudication and order concluding that Allied had intentionally failed to pay the prevailing wages due to workers on the projects described above by mis-classifying tasks performed by the workers as laborers’ work that should have been classified as electricians’ or plumbers’ work. The Secretary thereafter declared Allied to be debarred and prohibited from the award of any public works contract for a period of three years. Further, absent any new documentation from Allied, the Secretary imposed penalties and statutory liquidated damages in the amount of $97,025.46. Allied filed an appeal with the Board.
By decision and order dated August 17, 2006, the Board affirmed the adjudication and order of the Secretary. In its decision and order, the Board rejected Allied’s arguments that the Secretary’s adjudication was not based on substantial evidence, that the Bureau violated its right to due process by not providing clear guidance on the appropriate classification of laborer work, that the Act was unconstitutionally vague and that the Secretary’s rescission of the hearing officer’s decisional authority was improper. Allied thereafter filed a petition for review with this Court. The Bureau then filed a notice of intervention. The Board did not participate in this appeal.
On appeal, 9 Allied argues that the Secretary’s adjudication was not supported by substantial evidence. We disagree.
Section 11(h)(1) of the Act provides that the following “shall constitute substantial evidence of intentional failure to pay prevailing wage rates ... (l)[a]ny acts of omission or commission done willfully or with a knowing disregard of the rights of workmen resulting in the payment of less than prevailing wage rates.” 43 P.S. § 165 — 11(h)(1). The Courts have also spoken on this issue. In
Fiore v. Department of Labor and Industry, Prevailing Wage Appeals Board,
Allied places heavy emphasis on the fact that the evidence relied upon by the Secretary in reaching his decision included the testimony of four of its former, disgruntled workers, which was contradicted by the testimony of its own witnesses.
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The testimony relied upon by the Secretary is thoroughly summarized above and need not be restated herein. Suffice it to say, this testimony constitutes substantial evidence in support of the Secretary’s conclusion that Allied had intentionally violated the Act.
Next, Allied argues that its right to due process and a fair hearing were violated as a result of the Secretary’s rescission of the hearing officer’s decisional authority as well as a shifting of the burden of proof. We disagree with each of these arguments.
We begin with the Secretary’s rescission of the hearing officer’s decisional authority. By letter dated July 14, 2003, the Secretary formally delegated to the hearing officer the authority to preside at hearings, adjudicate cases and execute and issue final adjudications on his behalf. However, in this same letter, the Secretary specifically advised the hearing officer that said authority “will remain in effect until rescinded.” (S.R.R. at lb). Allied has failed to point to any section of the Act or its regulations prohibiting the Secretary from such rescission. Additionally, as the Board indicated in its decision, “[t]he power to delegate inherently carries with it the power to rescind that delegation.” (Board Decision at 38, R.R. at 405a). Further, Allied had a full and fair opportunity to appear before the hearing officer and present its case. 11 Thus, we cannot say that the Secretary’s rescission of the hearing officer’s decisional authority violated Allied’s rights to due process and a fair hearing. 12
We now turn to Allied’s argument regarding an alleged shifting of the burden of proof. Allied notes that the burden was on the Bureau to establish a violation but alleges that the burden was shifted to it to disprove the existence of a potential violation. However, our review of the record in this case fails to reveal such a shifting of the burden of proof. To the contrary, the burden remained appropriately on the Bureau throughout the pendency of this matter.
Finally, Allied argues that the Act was unconstitutionally vague regarding the appropriate classification of laborers’ work such that the Secretary violated Allied’s
Section 3 of the Act provides that “[t]he specifications for every contract for any public work to which any public body is a party, shall contain a provision stating the minimum wage rate that must be paid to the workmen employed in the performance of the contract.” 43 P.S. § 165-3. Section 5 of the Act, 43 P.S. § 165-5, prohibits contractors from paying anything less than the prevailing minimum wages with regard to a public works project. Section 6 of the Act, 43 P.S. § 165-6, outlines the duty of a contractor to keep accurate records of the name, craft and actual hourly rate paid to each worker on such a project. Section 11(a) of the Act, '43 P.S. § 165 — 11(a), provides that if a public body discovers that a contractor has failed to pay the appropriate prevailing wages, the public body is required to notify the Secretary of the same in writing.
Thereafter, pursuant to Section 11(c) of the Act, 43 P.S. § 165-ll(c), the Secretary is required to conduct an investigation, including a hearing. In the event that the Secretary concludes that the contractor’s actions in failing to pay the prevailing wage rates was intentional, Section 11(e) of the Act, 43 P.S. § 165-ll(e), provides that the contractor shall be prohibited from the award of any public works contract for a period of three years. This Section also permits the Attorney General to seek to recover penalties for such intentional violations.
We note that a statute is presumed to be constitutional and a party challenging the constitutionality of a statute has a heavy burden of persuasion.
Shapiro v. State Board of Accountancy,
Admittedly, neither the Act nor its regulations provide a specific definition of what tasks constitute laborers’ tasks on any given prevailing wage project. Rather, the regulations define “classification” as “[sjpecific categories of jobs which are performed within a ‘craft’ as defined in this section.” 34 Pa.Code § 9.102. “Craft,” in turn, is defined by these regulations as “[sjpecial skills and trades which are recognized as such by custom and usage in the building and construction industry.”
Id.
In this regard, we have repeatedly upheld this “custom and usage” standard.
See, e.g., Leonard S. Fiore, Inc. v. Department of Labor and Industry, Prevailing Wage Appeals Board,
Thus, we cannot say that the Act was unconstitutionally vague regarding the appropriate classification of laborers’ work such that the Secretary violated Allied’s right to due process by finding that it had intentionally violated said Act.
Accordingly, the order of the Board is affirmed.
ORDER
AND NOW, this 8th day of May, 2007, the order of the Pennsylvania Prevailing Wage Appeals Board is hereby affirmed.
Notes
. State College Electrical and Mechanicals, Inc. actually owns Allied Mechanical and Electrical, Inc.
. Act of August 15, 1961, P.L. 987, as amended, 43 P.S. §§ 165-1-165-17.
. These projects included work at Fairmount High School (July 2003 through June 2004) and North High School (August 2003 through May 2004) in the State College Area School District; Pollock Hall (April 2003 through February 2004) and Simmons Hall (March 2003 through August 2003) at the Pennsylvania State University; and West Branch Area High School (Februaiy 2004 through October 2004) in the West Branch Area School District.
.Workers on a public works project are paid according to the classification of the work which they perform. The prevailing wage regulations define "classification” as "[s]pe-cific categories of jobs which are performed
. At that point in time, the Bureau’s investigation had focused exclusively on Allied’s public works project at Simmons Hall.
. This new policy required the project foreman to initial off on a worker’s timesheet daily to verify that the hours were appropriate for the work that was performed.
. As of July 14, 2003, the Secretary had authorized the hearing officer to act as his representative to preside at hearings, adjudicate cases and execute and issue final adjudications on his behalf with respect to enforcement matters under Section 11 of the Act, 43 P.S. § 165-11. However, on August 2, 2005, the Secretary rescinded the delegation as it pertained to final adjudications and requested that the hearing officer merely prepare draft adjudications and orders for his review and approval.
. The record is unclear as to when Mr. Wills ceased working for Allied.
. Our scope of review of the Board’s decision is limited to determining whether constitutional rights were violated, an error of law was committed and whether necessary findings of fact were supported by substantial evidence.
Department of Labor and Industry, Bureau of Labor Law Compliance v. Lawson Demolition and Hauling Co.,
. Nevertheless, both Mr. Good and Mr. Hor-vat admitted before the hearing officer that
. Moreover, “the practice of one tribunal assessing credibility and rendering a decision where another tribunal has received the actual testimony is nothing new in the law.”
Biagini v. Workmen’s Compensation Appeal Board (Merit Contracting Company),
158 Pa. Cmwlth.648,
. Allied further alleges in the course of this argument that the Secretary’s rescission of the hearing officer’s decisional authority suggested a prejudice and bias held against it. However, Allied points to no evidence in support of this suggestion other than alleged statements made by the hearing officer off the record. Hence, we see no merit to this argument from Allied.
. In our decision in
Fiore,