Under § 656.20(c)(2), an employer is required to offer
a wage that equals or exceeds the prevailing wage determined
under § 656.40. Section 656.40 directs that occupations
subject to the Davis-Bacon Act or the Service Contract Act have
the prevailing wage determined under those Acts (seesupra Division II) and that other occupations have the
prevailing wage determined by the average wage paid to workers
similarly employed in the area of intended employment (seesupra Division III).
As to the posting of the prevailing wage during recruitment,
see Chapter 22, III, E, 3 (Recruitment Efforts).
Where the employer is notified that its job offer is below
the prevailing wage, but fails to either raise the wage to the
prevailing wage or justify the lower wage it is offering,
certification is properly denied. Editions Erebouni,
90-INA-283 (Dec. 20, 1991); Trilectron Industries, Inc.,
90-INA-188 (Dec. 19, 1991); Sumax Industries, 90-INA-502
(Dec. 4, 1991); Courtesy Caterers, 89-INA-56 (Jan. 31,
1990); General Aerospace Corp., 88-INA-480 (Jan. 11,
1990); Ashwin L. Shaw, 88-INA-290 (Nov. 2, 1989); Care
West-Garfield Nursing Center, 88-INA-483 (Oct. 26, 1989);
Emil Stykiel, 88-INA-67 (Mar. 1, 1989).
The Department of Labor's regulation at 20 C.F.R.
§ 656.20(c)(2) and the terms of 8 U.S.C. § 1182(a)(14)
are forward-looking -- the prevailing wage is determined as of
the date DOL reviews the application and issues the
certification. The Immigration and Naturalization Service, on the
other hand, is concerned that an employer is able to pay the wage
at the time certification is first sought, since visa priority is
established by that date. Masonry Masters, Inc. v.
Thornburgh, 875 F.2d 898 (D.C. Cir. 1989).
The Department of Labor regulations governing payment of the
prevailing wage rate are applicable to the job for which labor
certification is sought. Therefore, the CO may not deny
certification based upon the fact that the alien was paid less
than the prevailing wage rate in prior job positions. The
Kroenke Group, 90-INA-318 (July 12, 1991).
In determining the prevailing wage under
§ 656.40(a)(1), if the job opportunity is in an occupation
which is subject to a wage determination under the Davis-Bacon
Act, 40 U.S.C. §§ 276a etseq., 29 C.F.R.
Part 1, or the McNamara-O'Hara Service Contract Act, 41 U.S.C.
§§ 351 etseq., 29 C.F.R. Part 4, the
prevailing wage is the rate required under the statutory
determination. Standard Dry Wall, 88-INA-99 (May 24, 1988)
(en banc).
The denial of certification will be affirmed where the
employer refuses to raise the wage offered to the amount required
under the Davis-Bacon Act for the same position in that locality.
Anza Concrete, 90-INA-329 (Oct. 18, 1991); Polli
Painting and Decorating, 88-INA-493 (Oct. 31, 1989);
A.J.S. Electric, 88-INA-499 (Oct. 3, 1989).
The issue under § 656.40(a)(1) is not whether the
employer is subject to the provisions of the Davis-Bacon
Act, but whether the occupation is subject to a wage
determination under the Davis-Bacon Act. Brad Bartholomay,
Jr., Landscape Design and Consultation, 88-INA-332 (May 31,
1989) (en banc) (mason; employer involved in landscaping,
not construction business); Standard Dry Wall, 88-INA-99
(May 24, 1988) (en banc) (journeyman, drywall hanger);
Alco Electric Co., 90-INA-433 (Dec. 11, 1991); Larry
Christie, Contractor, 90-INA-135 (Apr. 29, 1991); Westco
Contractors, 88-INA-529 (June 12, 1990) (non-union company;
electrician); Brad Bartholomay, Jr., Landscape Design and
Consultation, 88-INA-507 (Mar. 28, 1990).
After two panels issued conflicting decisions involving the
same employer, same issue and different aliens, the Board decided
to consider the cases en banc. In the first case, the panel held
that the CO had improperly assessed the prevailing wage where the
California wage listing set forth wage rates for commercial
painters for projects in excess of $2.3 million and not for
painters of residential, single-family housing. On that basis,
the panel held that the CO had failed to show that he based his
determination of the prevailing wage upon reasonable and reliable
data. John Lehne & Son, 89-INA-313 (Dec. 12, 1990). In
the second case, the panel cited Standard Dry Wall,
88-INA-99 (May 24, 1989) (en banc), in holding that the
employer's occupation was subject to a wage determination under
the Davis-Bacon Act. The second panel found that the distinction
between residential and commercial painters did not indicate
otherwise. John Lehne & Son, 89-INA-267 (Dec. 18,
1990). The en banc decision is pending.
Under § 656.40(a)(2), wages set forth in a union
contract are relevant only if the occupation does not fall
within the purview of the Davis-Bacon Act. Alco Electric
Co., 90-INA-433 (Dec. 11, 1991).
Where the matter is not subject to a wage determination
under the Davis-Bacon Act or the McNamara-O'Hara Service Contract
Act, the prevailing wage determination is governed by
§ 656.40(a)(2)(i). That section provides that the prevailing
wage for labor certification purposes shall be:
The average rate of wages, that is, the rate of wages
to be determined, to the extent feasible, by adding the wage
paid to workers similarly employed in the area of intended
employment and dividing the total by the number of such
workers . . . .
SeeSeibel & Stern, 90-INA-86, 116 to 129, 144
to 168 (Apr. 26, 1990).
Section 656.40(a)(2)(ii) provides that if the wage rate was
set in a union contract, it will be considered the prevailing
wage. CompareAlco Electric Co., 90-INA-433 (Dec.
11, 1991) (union contract wage agreement not relevant to cases in
which wages are determined under Davis-Bacon or Service Contract
Act).
This provision was added to the regulations as an amendment
by the Secretary in response to the holding of United States
Court of Appeals for the Third Circuit in Naporano Metal &
Iron Co. v. Secretary of Labor, 529 F.2d 537 (3rd Cir. 1976);
see 42 Fed. Reg. 3450 (1977). In Naporano Metal
certification had been denied administratively because the wage
offered, although paid under a collective bargaining agreement,
was below the relevant "prevailing wage." The Third
Circuit held that payment of a union wage negotiated to cover
both alien and United States workers could not, as a matter of
law, adversely affect the wages and working conditions of
similarly employed American workers. Kids "R"
Us, 89-INA-311, 312, 344, 90-INA-20, 75, 81, 181, 187, 216
(Jan. 28, 1991) (en banc).
"having substantially comparable jobs in the
occupational category in the area of intended
employment," except that, if no such workers are
employed by employers other than the employer applicant in
the area of intended employment, "similarly
employed" shall mean:
(1) "Having jobs requiring a substantially
similar level of skills within the area of intended
employment"; or
(2) If there are no substantially comparable jobs in
the area of intended employment, "having substantially
comparable jobs with employers outside of the area of
intended employment."
The analysis of whether jobs are "substantially
comparable" for prevailing wage purposes should not focus
only on job titles or duties; instead, the totality of the job
opportunity must be examined. Tuskegee University,
87-INA-561 (Feb. 23, 1988) (en banc); Abilene Designed
Heating, 89-INA-367 (Oct. 15, 1991).
The totality of the job opportunity includes a consideration
of the nature of the business or institution. For example,
whether the business or institution is public or private, secular
or religious, profit or nonprofit, multinational corporation or
individual proprietorship, are factors that must be evaluated in
determining whether the job are substantially comparable.
Tuskegee University, 87-INA-561 (Feb. 23, 1988) (en
banc). Thus, salaries for associate professorships at member
institutions of the United Negro College Fund (UNCF) should be
compared to other UNCF schools rather than to other local
schools because UNCF schools have a well-recognized, stable
membership with the mission of making college-level instruction
affordable to black students, and constitute a large enough
membership to facilitate a broad and accurate survey of the
prevailing wage for similarly employed associate professors.
Talladega College, 89-INA-209 (Apr. 19, 1990).
Where a published wage survey is relied upon for a
prevailing wage determination, and includes a subclassification
for the employer's particular business, a CO may not use a more
general classification in determining the prevailing wage.
South Gate Engineering, Inc., 89-INA-215 (June 20, 1991)
(CO applied wage for welders "in all industries" rather
than for welders engaged in the manufacture of durable
goods).
SeealsoAbilene Designed Heating,
89-INA-367 (Oct. 15, 1991) (distinction between electrician and
electrician helper; panel considered, interalia,
that position was for a heating contractor and not an electrical
contractor).
To be "substantially comparable," a prevailing
wage survey should specify the wage for the specific subject of
the job opportunity. Talladega College, 89-INA-209 (Apr.
19, 1990). Thus, the wage survey have to be specific to the
discipline of the profession,
Talladega College, 89-INA-209 (Apr. 19, 1990)
(although permitted to compare salaries of associate
professors at other UNCF member institutions rather than
other local colleges, on remand the employer was restricted
to presenting prevailing wage data regarding the same
discipline (mathematics), rather than for all associate
professorships).
the duties and requirements of the position,
Abilene Designed Heating, 89-INA-367 (Oct. 15,
1991) (distinction between electrician and electrician
helper; panel considered, interalia, DOT
Code, lack of need for state license).
Zenith Manufacturing and Chemical Corp.,
90-INA-211 (May 31, 1991) (where an employer's descrip-tion
of the position of ultrasonic technician was
"substantially comparable" to the job
classification assigned by the CO (electronic technician),
the CO's use of a wage survey for electronic technicians was
appropriate).
or the permanent or temporary nature of the employment.
The prevailing fringe benefits of secretaries should
not be considered in determining the prevailing wage of
temporary secretaries, because the two groups are not
"similarly employed." First Girl, Inc. v.
Regional Manpower Admin., DOL, 361 F.Supp. 1339 (N.D.
Ill. E.D. 1973).
An employer must offer a wage that is proper for the job
described. Thus, it may not advertise and offer a wage which is
appropriate for a lesser position than the one described.
Arlen Real Estate Development, 88-INA-384 (Apr.
18, 1990) (where the job description and requirements showed
that position was for an International Sales Manager, the
employer could not advertise and offer the wage for a Real
Estate Agent).
Similarly, an employer cannot change the title of a job so that
the wage it is offering will appear proper.
Western Bagel Making Corp., 90-INA-255 (Jan. 2,
1991) (per curiam) (employer attempted to redesignate
dough-mixer operator as a helper).
A CO cannot challenge the job title for the first time in
the FD. Phyllis C. Jacobson, 90-INA-228 (Sept. 3, 1991).
Seealso Chapter 12, II, C and D (Final
Determination) for detailed discussion of the requirement that
the FD not be based on evidence or any issue not raised in the
NOF.
the area within normal commuting distance of the
place (address) of intended employment. If the place of
intended employment is within a Standard Metropolitan
Statistical Area (SMSA), the SMSA is deemed to be any place
within normal commuting distance of intended
employment.
The regulations do not define "Standard Metropolitan
Statistical Area." One panel, however, has noted that the
Appendix to the 1988 Bureau of Labor Statistics Industry Wage
Survey states that, according to the U.S. Office of Management
and Budget, through June 1983, an "MSA" is:
a county or group of contiguous counties which contain
at least one central city of at least 50,000 inhabitants or
a central urbanized area of at least 100,000. Counties
contiguous to the one containing such a city or area are
included in an MSA if, according to certain criteria, they
are essentially metropolitan in character and are socially
and economically integrated with the central city.
Seibel & Stern, 90-INA-86, 116 to 129, 144 to 168
(Apr. 26, 1990) (median wage for an entire region is an
inappropriate prevailing wage for a starting position at a rural
garment manufacturer).
The Occupational Outlook Handbook sets forth a wage based on
the national average and, therefore, does not provide a
prevailing wage for the "area of intended employment."
Heritage Bindery, 89-INA-351 (Dec. 11, 1990) (CO's
reliance on Occupational Outlook Handbook for prevailing wage
information was misplaced).
The Board will remand matters where the CO fails to consider
the employer's argument that the prevailing wage survey used by
the CO was not applicable to the "area of intended
employment." Peddinghaus Corp., 88-INA-79 (July 6,
1988).
Certification will be denied to employers who hire U.S.
workers, but fail to pay them the prevailing wage. M. Sky
Construction Co., 89-INA-340 (Oct. 29, 1990) (employer hired
two U.S. workers as welders, paid them $.50 per hour less than
the prevailing wage of $12.50, and fired them on their second
day).
In prevailing wage determinations the CO should permit the
employer to submit evidence of fringe benefits if it wishes to
demonstrate that its hourly rate of pay is significantly enhanced
by these benefits. Sections 656.40(a)(1) (occupations covered by
Davis-Bacon Act) and 656.40(a)(2)(ii) (wage rates determined
under union contracts) allow for the consideration of fringe
benefits in prevailing wage determinations. Kids "R"
Us, 89-INA-311, 312, 344, 90-INA-20, 75, 81, 181, 187, 216
(Jan. 28, 1991) (en banc). SeealsoSuckno Brothers Co., 90-INA-177 (Dec. 12, 1991) (remand
for consideration under Kids "R" Us).
Where the CO refused to consider fringe benefits in
determining whether the employer was offering the prevailing
wage, and the employer did not establish that the benefits were
"uncommonly good," the panel remanded the case for the
employer to establish the value of its fringe benefits or amend
its wage to the prevailing wage determined by the CO. Koba
Corp., 91-INA-11 and 91-INA-12 (May 29, 1991).
Where an employer is relying on its fringe benefits in its
wage offer, it bears a heavy burden to demonstrate to the CO the
fairness and bona fides of its proposal. The employer must show
the value of its benefits and that they are not common to the
comparable jobs upon which the prevailing wage is based.
Additionally, where the employer is relying on unique fringe
benefits, these must be disclosed in its advertisements and
postings. Kids "R" Us, 89-INA-311, 312, 344,
90-INA-20, 75, 81, 181, 187, 216 (Jan. 28, 1991) (en
banc); Suckno Brothers Co., 90-INA-177 (Dec. 12,
1991); Peddinghaus Corp., 88-INA-79 (July 6, 1988).
The requirement that a position be offered at the prevailing
wage cannot be waived due to an employer's alleged financial
hardship. Noberto La Rosa, 89-INA-287 (Mar. 27, 1991).
The Board has not forbidden the use of salary ranges by
employers in job offers. However, where the range dips below the
established prevailing wage, the offer violates the
regulations.
The employer failed to offer the prevailing wage where the
determined prevailing wage was $2,916 per month and the employer
offered between $2,300 and $2,950 per month. While the prevailing
wage was within the range of the employer's offer, the employer's
offer suggested that it might pay qualified applicants less than
the prevailing wage. Sterling Management Systems,
89-INA-216 (Mar. 18, 1991).
When challenging a CO's prevailing wage determination, an
employer bears the burden of establishing both that the CO's
determination is in error and that the employer's wage
offer is at or above the correct prevailing wage. PPX
Enterprises, Inc., 88-INA-25 (May 31, 1989) (en banc);
Sun Valley Co., 90-INA-391 (Jan. 6, 1992) (prevailing
overtime wage rate); Tse Yu Chun, M.D., 90-INA-413 (Nov.
19, 1991) (labor certification denied where the employer
challenged the CO's occupational classification but failed to
submit its own wage survey as requested by the CO).
As to the employer's burden when attempting to establish
that fringe benefits should be considered in its wage offer,
supra Division III, G, 2.
Where a CO instructs an employer to submit contervailing
evidence that the prevailing wage determination is in error, and
does not instruct the employer to establish that its wage offer
is within the correct prevailing wage, the CO
has provided inadequate notice of the employer's burden of proof
in rebuttal. PPX Enterprises, Inc., 88-INA-25 (May 31,
1989) (en banc); Seibel & Stern, 90-INA-86, 116
to 129, 144 to 168 (Apr. 26, 1990) (panel remanded forty
consolidated matters for a redetermination of the prevailing wage
where the employer had established the inappropriateness of a
wage survey relied upon by the CO, but had not been informed of
its burden to establish the correct prevailing wage).
It is harmless error, however, for the CO to fail to apprise
the employer of its burden to establish that its wage offer was
the correct prevailing wage where the employer is aware of its
burden to submit evidence that the CO's prevailing wage was in
error but fails to do so. Midtown Manufacturing Corp.,
90-INA-402 (Jan. 9, 1992).
If an employer offers its own wage survey, the CO must give
it due consideration. Where an employer provides credible
evidence of wages paid in positions similar to the petitioned
one, the CO's crediting of the State wage survey is cursory or
inaccurate, and the record does not contain any evidence of the
State survey, the CO's denial of certification may be
reversed.
Pal-Mil Enterprises, 89-INA-251 (Mar. 29, 1991)
(case remanded for updating the wage calculation and
appropriate recruitment); Asian Americans for Community
Involvement, 88-INA-481 (Jan. 31, 1990).
Or, a matter may be remanded for the CO to consider the
employer's wage survey, and to provide a reasonable
explanation of how the prevailing wage was determined and why it
is appropriate under the circumstances of the case.
The panel remanded a case where the CO failed to consider
the employer's independent wage survey. Chuck Rogers Office
Equip. Co., 91-INA-230 (June 25, 1992). SeealsoHelane Feis, 91-INA-366 (Apr. 28, 1993).
When an employer challenges a CO's prevailing wage
determination, the CO must provide a reasonable explanation of
how the prevailing wage was determined and why it is appropriate
under the circumstances, and should assure that any supporting
data is reliable and reflects conditions contemporaneous with the
recruitment period. Tuskegee University, 87-INA-561 (Feb.
23, 1988) (en banc). If a CO fails to explain why he
relied on the state agency's wage survey rather than the
employer's, the CO's denial of certification may be vacated.
SeeLas Cazuelas Nuevas, 87-INA-646 (Dec. 29,
1988).
In Leaf, Inc., 90-INA-427 (Dec. 11, 1991), the panel
remanded the case for redetermination of the prevailing wage rate
where the CO failed to provide a reasonable explanation of the
basis of the prevailing wage determi-nation despite the
employer's request for such information.
SeealsoSeibel & Stern, 90-INA-86,
116 to 129, 144 to 168 (Apr. 26, 1990) (matters remanded because
employer was not given adequate notice of its rebuttal burden; CO
instructed that, if she concluded on remand that the employer's
prevailing wage proffer is incorrect, she must state her reasons
for rejecting that proffer, make her own prevailing wage
determination using an appropriate method for the job offer, and
provide the employer with the opportunity to comply with her
prevailing wage determination).
Certifying Officers are not bound by a local job service's
statements or actions. Therefore, even if a local job service
does not find that an employer's offered salary is below the
prevailing wage, the CO can so find. Aeronautical Marketing
Corp., 88-INA-143 (Aug. 4, 1988).
If the sole ground for denial of labor certification is a
prevailing wage dispute, and the employer specifically requests
additional time to comply to complete its own wage survey, it may
be an abuse of discretion for the CO to refuse to grant the
extension.
SeePolyclad Laminates, Inc., 90-INA-94
(Mar. 26, 1991) (panel admitted that the employer's request
was cryptic and that the question was close).
ButseeCommercial Graphics,
Inc., 90-INA-114 (July 15, 1991) (after several
extensions, CO warned employer that a further extension
would not be granted short of extenuating circum-stances;
employer requested another extension merely stating that it
needed more time).
One panel has indicated that a reasonable request for an
extension of time to complete an independent wage survey should
be granted, even if the CO alleges that the wage should be
determined under a Davis-Bacon Act covered occupation. Gutter
Co., 90-INA-71 (Mar. 27, 1991). Because a wage survey by the
employer is not relevant if the occupation is subject to a
Davis-Bacon wage determination (seeinfra Division
V, B, 3), it is not clear whether a CO would be required to grant
an extension if the employer did not question whether the
occupation is covered by the Davis-Bacon Act.
An employer whose rebuttal challenges the CO's wage
determination, but does not indicate that the employer is willing
to readvertise at that wage if the challenge is unsuccessful, is
not entitled to an automatic remand for readvertisement if the CO
upholds the wage determination. Richard Clarke Associates,
90-INA-180 (June 6, 1991) (although employer did not offer to
readvertise in its rebuttal, panel remanded for readvertisement
on other grounds) (en banc review pending).
If an offer to readvertise under the correct prevailing wage
first appears in the motion for reconsideration, it is not an
abuse of discretion for the CO to consider the offer to be
untimely rebuttal and refuse to reopen the matter. Yuma
Construction Co., 89-INA-341 (May 3, 1990). In Yuma,
the employer's rebuttal was not responsive to the CO's finding
that the wage offered in a recruitment poster was below the
prevailing wage, and the employer's offer after the FD to repost
the job at the prevailing wage was considered by the CO to be
untimely rebuttal.
However, when an employer makes a good faith effort to
clarify its position in its request for reconsideration, the CO
must show that she thoughtfully considered the request, rather
than summarily dismissing it. Further, when the employer also
offers to acquiesce to the CO's position if the clarification is
not accepted, the CO cannot meet the offer with silence but must
state reasons for refusing it. Richard Clarke Associates,
90-INA-180 (June 6, 1991) (en banc review pending).
If, however, an employer offers to readvertise at the
prevailing wage in a motion to reopen, after expressing a
willingness to readvertise in its rebuttal if its other rebuttal
arguments failed, then the CO may be required to allow
readvertisement. K.E. Curtis Construction Co., Inc.,
89-INA-48 (May 2, 1990). In K.E. Curtis, the CO's NOF
indicated that the employer had not offered the prevailing wage
determined under the Davis-Bacon Act. In rebuttal, the employer
argued that it was not subject to the Davis-Bacon Act, but
indicated that it would comply with the NOF if the CO rejected
that argument. The CO issued a FD denying certification, after
which the employer timely moved to re-open the case and offered
to comply with the wage required by the Davis-Bacon Act and
readvertise with a corrected job description. The CO never ruled
on the motion to re-open. On these facts, the panel remanded the
case to the CO with directions that if the CO found that the
employer complied with the order to offer the prevailing wage,
the CO must direct the employer to proceed with new recruitment
efforts.
The CO improperly used a figure from the 1988 Bureau of
Labor Statistics ("BLS") Industry Wage Survey for the
Middle Atlantic States to determine the prevailing wage for a
starting position as a sewing machine operator at a rural garment
manufacturer. Use of the figure was improper because (1) the
figure represented a median wage for all sewing machine operators
regardless of the level of seniority or supervisory
responsibility, (2) the entire Mid-Atlantic region is larger than
the area of intended employment, and (3) the BLS survey did not
appear to be designed to reflect wages for a rural location
within the region. Seibel & Stern, 90-INA-86, 116 to
129, 144 to 168 (Apr. 26, 1990).
An employer who challenges a CO's prevailing wage
determination must state a basis for believing that its own wage
represents the actual prevailing wage. Altra Filter, Inc.,
90-INA-15 (Dec. 7, 1990). Typically, employers attempt to support
their wage offers by conducting independent wage surveys. Where
an employer challenges a CO's prevailing wage determination with
its own wage survey, that survey must be relevant and accurate.
F.L. Tarantino & Sons Quakertown Memorials, 90-INA-231
(June 13, 1991); Sumax Industries, 90-INA-502 (Dec. 4,
1991). An employer will not successfully challenge the CO's
prevailing wage determination by relying on an independent survey
which is "too narrow" or provides
"insufficient" information. Zenith Manufacturing and
Chemical Corp., 90-INA-211 (May 31, 1991).
An employer should provide sufficient background information
about its survey to allow a test of the adequacy of the sample.
Zenith Manufacturing, supra. Thus, an alternative
survey must be adequately documented. For example, a survey which
relies on salaries paid by competitors, but does not provide
documentation by the competitors, may not be persuasive. Crest
Aviation, Inc., 88-INA-365 (June 23, 1989). What constitutes
a persuasive survey depends on many factors. Thus:
A survey of wages paid in three states other than the
one where the job is located is not relevant. SeeWirtz Manufacturing Co., 88-INA-63 (Jan. 13,
1989).
A survey of salaries for jobs which are not comparable
to the job advertised is flawed. SeeCrest
Aviation, Inc., supra.
A survey of only one company is not sufficient to
refute the survey used by DOL. Robbins Auto Top Co.
Inc., 90-INA-29 (Nov. 30, 1990) (letter from competitor
who states that its employees who work in a specific
department and earn a certain wage does not constitute a
reliable or accurate survey for the position of processing
inspector).
In contrast, in Pal-Mil Enterprises, 89-INA-251 (Mar. 29,
1991), the CO erred in rejecting the employer's wage survey where
the employer had submitted credible evidence of wages paid in the
local area for persons in the same position performing similar
duties at restaurants of the same type and size.
When an employer challenges a prevailing wage determination,
but its own wage survey does not establish that the wage offered
is within five percent of the prevailing rate, certification may
be denied based on the employer's own survey. Nastrix
Corp., 90-INA-429 (Nov. 27, 1991); Employer's Casualty
Company, 90-INA-77 (Apr. 29, 1991) (CO's failure to disclose
the names of employers participating in the government survey was
held to be harmless error).
A wage survey by the employer not relevant if the occupation
is subject to a Davis-Bacon wage determination. Andros Floor
Coverings, 90-INA-6 (Oct. 23, 1990), citing Polli Painting
and Decorating, 88-INA-493 (Oct. 31, 1989) and A.J.S.
Electric, 88-INA-499 (Oct. 3, 1989).
