City of Lansing, ARB No. 01-099 (ARB Oct. 31, 2001

U.S. Department of Labor

Administrative Review Board 200 Constitution Avenue, N.W. Washington, D.C. 20210

ARB CASE NO: 01-099
DATE: October 31, 2001

In the Matter of:

CITY OF LANSING

Disputes concerning the payment of
prevailing wage rates or proper
classification by the Davis
Construction Company, a contractor
for the city's Lansing Avenue Pump
Station (LAPS) Project PS#25089

BEFORE: THE ADMINISTRATIVE REVIEW BOARD¹

Appearances:

For the Petitioner:
   Jack C. Jordan, Esq.,
      City of Lansing, Lansing, Michigan

For the Respondent:
   Barbara E. Racine, Esq., Douglas J. Davidson, Esq., Steven J. Mandel, Esq.,
      U.S. Department of Labor, Washington, D.C.

   In a letter dated July 18, 2001, the District Director of the Wage and Hour Division, Detroit Michigan informed the City of Lansing (Lansing) that it had closed its investigation into Lansing's allegations that workers on the Lansing Avenue Pump Station Project, PS325089, had not received the prevailing wage rate pursuant to the Davis-Bacon Act (DBA), 40 U.S.C.A.§§276a - 276a-5 (West 1986) and 29 C.F.R. Parts 5-7 (2000) and had determined that the investigation did not "support a conclusion that Davis Bacon violations occurred." Lansing petitioned the Administrative Review Board (Board) for review of this letter pursuant to 29 C.F.R. Part 7.

   On October 17, 2001, we issued an Order to Show Cause why, in light of the Administrator's position, we should not dismiss the Petition for Review. In response to the Show Cause Order, Lansing has filed a Motion to Withdraw and/or Dismiss its Petition for Review Without Prejudice. In this Motion, Lansing asserts that in light of "the Administrator's position that no final agency decision has been issued and the Wage and Hour Division of the Department of Labor has agreed to reinvestigate this matter," Lansing agrees that the Board should dismiss its Petition for Review without prejudice. The Board concurs and accordingly, we DISMISS Lansing's Petition for Review, without prejudice.²

   SO ORDERED.

      PAUL GREENBERG
      Chair

      E. COOPER BROWN
      Member

¹ This appeal has been assigned to a panel of two Board members, as authorized by Secretary's Order 2-96. 61 Fed. Reg. 19,978 §5 (May 3, 1996).

² In our October 17, 2001 Order to Show Cause, we directed Lansing to identify the basis for the Board's jurisdiction over its petition. Lansing responded by providing a copy of an EPA document entitled "Labor Standards Provisions for Federal and Federally Assisted Contracts." Presumably, this document was part of Lansing's funding agreement with EPA.

   Lansing's petition seeks review of wage payment practices on a city contract that was funded in part with monies provided by EPA. By its terms the Davis-Bacon Act only governs construction contracts entered into directly by the Federal government; because the Federal government apparently was not a direct party to the construction contract in Lansing, the Davis-Bacon Act itself does not apply. However, federally-assisted construction projects that are implemented by state or local governments or other entities nevertheless may be subject to prevailing wage requirements and the Labor Department's Davis-Bacon regulations if the authorizing statute under which the funds are provided includes Davis-Bacon-type language. Such statutes commonly are known as Davis-Bacon Related Acts. See, e.g., 29 C.F.R. §5.1. This Board has jurisdiction to decide Davis-Bacon-type questions that arise under the Related Acts.

   The EPA document that Lansing provided to the Board does not identify the specific Federal authorizing statute under which Lansing received Federal monies, and the Board's jurisdiction over this matter therefore has not been established. Because we grant Lansing's motion to dismiss its petition without prejudice, it is unnecessary for us to resolve this jurisdictional question now. However, if this matter is presented to this Board again at some later date, it will be necessary for the petitioner to demonstrate the Board's jurisdiction by identifying the statutory source of EPA's grant of Federal funds for the construction project.