Case No. 92-23, August
16, 1993, noted that:
if there is a skilled craft listed in the wage decision that is lower than the laborers rate
we must look at the craft in the wage decision that is the most similar to the requested
additional classification. In the absence of a classification in the wage decision that
can perform similar duties, we then look to the lowest skill craft above the laborers.
Director's Letter, March 4, 1994. AR Tab D, Enclosure 2.
On July 19, 1994, ACE forwarded a request for reconsideration to the
Administrator. AR Tab D. ACE argued that a later wage determination contained a Glazier
classification at $13.33 hourly and a Brush and Spray Painter classification at $15.19 hourly with no
fringe benefits, and that the skills required of a painter are closer to a Glazier than a Soft Floor Layer.
The Administrator responded in a final ruling letter dated November 6, 1995,
that the lowest rate for a skilled craft listed in the applicable WD, above the unskilled laborer rate,
was the Soft Floor Layer classification. AR Tab A. The Administrator also noted that all other
classifications in the wage determination, except for Glaziers and Laborers, were significantly higher
than the rate proposed by Childress. Id. at 2. The Director's decision was reaffirmed by the
Administrator. By Petition dated December 21, 1995, Childress appealed the Administrator's ruling.
DISCUSSION
The regulations governing conformance set out three criteria at 29 C.F.R.
§ 5.5(a)(1)(ii)(A) which must be satisfied in order to approve conformed classifications and
rates:
(1) The work to be performed by the classification requested is not performed by a
classification in the wage determination; and
(2) The classification is utilized in the area by the construction industry; and
(3) The proposed wage rate, including any bona fide fringe benefits, bears
a reasonable relationship to the wage rates contained in the wage determination.
(Emphasis added).
The conformance process is not a de novo proceeding to retroactively
determine the prevailing wage for a particular classification. Sumlin & Sons, Inc., WAB Case
No. 95-08, Nov. 30, 1995. Rather it is a procedure by which the Administrator may establish a wage
[Page 3]
rate for a classification missing from the wage determination, but necessary to perform the contract.
In establishing a conformed rate the Administrator is given broad discretion. Clark Mechanical
Contractors, Inc., WAB Case No. 95-03, Sept. 29, 1995. The Administrator's decision will be
reversed only if it is inconsistent with the regulations, or is "unreasonable in some sense or .
. . exhibits an unexplained departure from past determinations . . . ." Titan IV Mobile
Service Tower, WAB Case No. 89-14 (May 10, 1991), slip op. at 7.
As first noted by the Director and reaffirmed by the Administrator, Wage
Appeals Board decisions have repeatedly held that in order to comply with the reasonable
relationship requirement of the conformance regulations, a proposed rate for a skilled classification
must be at least equal to the lowest rate for a skilled classification, above the unskilled classification
of laborer. M.Z. Contractors, supra; Miller Insulation Co., WAB Case No. 94-01, May 2,
1994; Clark Mechanical Contractors, Inc., WAB Case No. 95-03, Sept. 29, 1995. For this
reason the Administrator's decision to deny the conformance request at the Glazier rate is well
supported by the record. The applicable wage rate for Glaziers is $11.33 without any fringe benefits.
The unskilled laborers rate is $10.40 plus $2.70 in fringe benefits, for a total of $13.10. The
conformance regulation, set out with emphasis above, clearly requires that bona fide fringe
benefits are to be included when deciding the reasonableness of a requested conformance.
Childress's reliance on a later wage determination is misplaced. The Board
has adopted the position that a parry seeking conformed classifications and rates "may not rely
on a wage determination granted to another party regardless of the similarity of the work in
question." Inland Waters Pollution Control, Inc., WAB Case No. 94-12, Sep. 30, 1994,
slip op. at pp. 7-8. In fact, the Board has ruled that a contractor could not prospectively rely on Wage
and Hour's prior approval of conformed classifications and rates for application to a contract
performed at the same location. E&M Sales, Inc., WAB Case No. 91-17, Oct. 4, 1991. In
short, the holdings in these cases demonstrate that there is no element of equitable reliance available
under the conformance procedures.
The decision of the Administrator is AFFIRMED.
SO ORDERED.
DAVID A.
O'BRIEN
Chair
KARL J.
SANDSTROM
Member
JOYCE D.
MILLER
Alternate
Member
[ENDNOTES]
1 On April 17, 1996, the
Secretary redelegated jurisdiction to issue final agency decisions under, inter alia, the Davis-
Bacon and Related Acts and their implementing regulations to the newly created Administrative Review
Board (the Board). Secretary's Order 2-96 (Apr. 17, 1996), 61 Fed. Reg. 19978, May 3, 1996 (copy
attached).
Secretary's Order 2-96 contains a comprehensive list of the statutes, executive
order, and regulations under which the Board now issues final agency decisions. A copy of the final
procedural revisions to the regulations, 61 Fed. Reg. 19982, implementing this reorganization is also
attached.
2 Wage Appeals
Board; see 29 C.F.R. Part 7 (1995).