ADDING CLASSIFICATION TO
WAGE
DETERMINATION
Rite Landscape Construction Co., Inc.
WAB 83-3, October 18, 1983
To give any meaning to the words shall be classified or reclassified
conformably to the wage determinations in 29 CFR 5.5(a)(1)(ii), the proposed wage rates must
bear same reasonable relationship to the wage rates contained in the wage determination. This
does not Wean that the rate must be an identical rate to one in the wage determination. In fact, it
could even be lower than any rate in the wage determination. But certainly it must be within
close proximity to those contained in the contract specifications. Mere, the rate of $4.50 per hour
as requested by petitioner does not meet the criterion of treasonable relationships to the other
wage rates contained in the wage determination.
With respect to the landscape laborer's classification, which petitioner
requested be added to the wage determination, the Board is not entirely convinced that a laborer
performing landscape work can be fitted into the duties of a building construction laborer, a
classification already listed in the wage determination. However, the Board finds it unnecessary
to determine whether the Assistant Administrator correctly denied the additional classification.
The wage rate for such conformed classification for landscape laborer would not differ from the
wage rate for building construction laborer.
Prime Roofing, Inc.
WAB 78-20, January 11, 1979
Wage-Hour correctly denied petitioner's request that an additional
classification of roofer's helper be added to the wage determination. The basis for petitioner's
request was a negotiated working agreement which contained no limitation on the duties to be
performed by helpers where roofers or apprentices are unavailable, and prior to construction of
the project neither the contracting officer nor Wage-Hour could be assured that the requested
helpers would not install roofing material.
Clevenger Roofing and Sheet Metal Co.
WAB 79-14, Aug. 20, 1980
Even though Petitioner's request for roofer's helper/ trainee classification
was preliminarily approved by a representative of the contracting agency, the Corps of Engi-
neers, Department of Labor regulations require the contracting agency to report the
reclassification to the Secretary of Labor. 29 CFR 5.5(a)ll)(ii). These regulations do not give the
contracting agency the authority to approve additional classifications.
Holloway Sand & Gravel Trucking, Inc.
WAB 79-13, Jan. 16, 1980
There is no basis for issuing conformable rates pursuant to 29 CFR
5.5(a)(ii) for truck drivers when that classification is already contained in the applicable wage
determination. Conformance by its own terms only applies to the work being performed.
Wage rates for Roofer's Belters, DeNarde Construction
WAB 78-3, May 14, 1979
It would be improper to approve the additional classification of helper
when the negotiated agreement which provided for the employment of helpers failed to provide
safeguards that would prevent helpers from performing roofer's duties.
Wage Rate for Roofer's Helpers, FT. Richardson, Alaska
WAB 78-2, Sept. 18, 1978
There did not exist a sufficient distinction between the work performed by
roofer's helpers and journeymen roofers to justify the issuance of a separate classification for a
roofer's helper, particularly where the job description provided by the petitioner indicated that a
roofer's helper performs the same duties as a journeyman roofer with the exception of not being
able to work at the kettle, and this prohibition was to last only three months as evidenced by the
collective bargaining agreement.
Review of Wage rates applicable for power equipment operators, Hardaway
Construction Co.
WAB 70-4, Feb. 29, 1972
The Department of Labor occasioned this enforcement problem by failing
to include power equipment operators in its wage determination, and EDD, as well as the local
housing authority, failed to follow the classification and reclassification procedures of the
regulations and contract provisions. It is incumbent on the Administrator, acting under both his
wage predetermination ant enforcement responsibilities, to make some showing that the
petitioner in fact was not paying the prevailing rates for operators in Taylor County at the time
this contract was awarded. If unable to do so, the matter is to be disposed of by the Administrator
taking a non-enforcement position in this case in accordance with procedures long recognized in
cases of this type where the evidence of record is insufficient to support a finding of contract
labor standards irregularities.
Determination of wage rates applicable to the dredging subcontract for Interstate
Highway Project I-95-1(14)(84)
WAB 69-3, June 20, 1969
A determination of conformable wage rates should relate back to the time
of the making of the contract.
Elmer Davis
WAB 80-8, May 4, 1984
The Assistant Administrator did not err in approving the addition of an
electrician's classification and wage rate to the predetermined wage schedule, even though the
wage determination contained a classification and wage rate for lineman. With the exception of
lineman and groundman classifications, every other classification on the wage determination
reflected open sloop, non-negotiated wage rates as prevailing. Wage and Hour conducted an area
practice survey of both negotiated and non-negotiated practice in the area and found that it was
local area practice for electricians to perform the same duties, Wage and Hour was unable to
locate any similar construction in the area that utilized lineman or was performed by contractors
signatory to the applicable collective bargaining agreement. A laborer or mechanic under the
Davis-Bacon Act is entitled to be paid the prevailing rate for the work performed according to
the local area practice. Be is not entitled to be paid at a higher rate than that prevailing because,
by reason of "inadvertence," the true wage rate was omitted from the wage schedule
when, as is the case here, appropriate steps were duly taken to correct the inadvertence. It is
further clear that the Assistant Administrator meticulously applied the basic Fry
Brothers, WAB 76-6, principle.
Hawk View Apartments
WAB Case No. 85-20, April 24, 1986
Petitioner was not penalized for using certain classifications (plumber's
helper, irrigation plumber's helper, and utility worker) that were not listed on the federal wage
determination, but were listed on the Nevada State wage determination which also applied to the
project. The Assistant Administrator had denied petitioner's conformance request to add these
classifications to the federal wage determination. The Board ruled use of these requested
classifications did not violate the basic principles of the Davis-Bacon Act and was consistent
with local area practice as established by organized crafts through negotiated agreements.
Evergreen Construction, Inc.
WAB Case No. 86-4, July 21, 1986
The only method by which a contracting agency or Wage Hour can provide
additional classifications which have not been listed in the applicable wage determination are set
forth in the regulations at 29 CFR 5.5(a)(l)(ii)(A). The requested wage rate of $4 per hour for the
classification of lawn sprinkler installer, which was substantially lower than the unskilled
laborer's rate on the wage determination did not meet the treasonable relationship. test required
by the regulations.
TRL Systems
WAB Case No. 86-8, August 7, 1986
After contract award, and when the factual situation does not come within
the relief provided under 29 CFR 1.6(f), the only method to provide additional classifications not
listed on the wage determination in that set forth in 29 CFR 5.5(a)(1)(ii)(A). There is ample
evidence in the record that the work to be performed by the requested classification of protective
signal installer is performed by the electrician's classification already contained in the wage
determination. The Board had previously held in Warren Oliver Company,
WAB Case 84-8, that it is not necessary that the classification in the wage determination be the
prevailing one, but only that work in the area be performed by that classification of work.
Layne-Northern Company
WAB Case No. 85-15, December 19, 1985
Once a contract has been awarded, the only method for adding
classifications is that provided in 29 CFR 5.5(a)(1)(ii). In this case, the record shows that work
can be and is performed by classifications contained in the wage determination. It is not
necessary that the classifications in the wage determination be the prevailing ones, but only that
the work in question be performed by classifications contained in the wage determinations.
Therefore the requested additional classifications are denied.
Sealtite Corporation
WAB Case No. 87-6, October 4, 1988
In affirming the administrative law judge's finding that the contractor was
subject to Davis-Bacon debarment, the Board cited record evidence of the prevailing wage and
overtime violations, the misclassification of employees and the untimely submission of certified
payrolls. The only classification utilized by the contractor was one not listed on the wage
determination, and the contractor did not seek to add that classification through the Department's
conformance procedures. The contractor instead paid employees at rates well below those
contained in the applicable wage determination.
M.A. Mortenson Company
WAB Case No. 87-50, February 17, 1989
The Administrator's decision denying additional classifications of cleanup
workers was affirmed by the Board. Petitioners failed to meet any of the criteria required by 29
CFR 5.5(a)(1) (ii)(A) in order to obtain approval of new classifications. Although a new
collective bargaining agreement authorized the additional classifications and lower rates
subsequent to the start of construction, it was area practice when the wage determination was
issued, and the contract bid and awarded, for the classification of unskilled laborers contained on
the wage determination to perform the disputed cleanup work. Furthermore, the proposed wage
rates, which ranged from 1/3 to 3/5 of the wage determination rate for unskilled laborers, did not
bear a reasonable relationship to those in the wage determination. Approval of use of the
requested additional classifications would give Petitioner a post-facto advantage over all others
who bid this job, and would be neither just nor in the public interest.
APPEAL OF ADMINISTRATIVE LAW
JUDGE'S OR ADMINISTRATOR'S DECISION - TIMELINESS
Jos. J. Brunetti Construction Co. & Dorson Electric & Supply. Co.
Inc.
WAB Case No. 80-9, November 18, 1982
The filing of a Notice of Intent to Appeal is sufficient to satisfy the
Regulation's requirement that an appeal be filed within 20 days or the ALJ decision becomes
final.
Peerless Products, Inc.
WAB Case No. 80-4, November 18, 1982
The Solicitor's Notice of Intent to Appeal and Request for Extension of
Time was filed 5 days after the administrative law judge's decision became final under 29 CFR
5.11(b). The Chief Administrative Law Judge exceeded his authority with respect to Section
5.11(b) when he granted the extension of time. The regulations do not give him the discretion to
modify Section 5.11(b). Only in special circumstances and for good cause may a party be
relieved from the obligation to file an appeal within 20 days from the final decision by an
administrative law Judge. The majority's decision has the effect of denying justice to the very
people who are the intended beneficiaries of the Davis-Bacon Act.
Irvinbilt Company
WAB Case No. 88-22, September 8, 1989
The Board denied petitioner's untimely request for an extension of time,
thereby affirming the finality of the Administrator's ruling. The Board noted that the history of
the case showed an unusual number of filing extensions by petitioner. The Order further noted
that there was no dispute concerning the amount of back wage liability, and that the
Administrator had properly advised petitioner that claims among the developer, prime contractor
and subcontractor as to who should bear ultimate responsibility for these violations was not an
appropriate subject for DOL proceedings.
Electrical Improvements, Fort Wadsworth; Tap Electrical Contracting Service
Inc.
WAB Case No. 87-28, July 22, 1987
The Board denied a motion for an extension of time in which to appeal
from a ruling of the Administrator. The ruling notified the contractor it had 30 days to appeal the
ruling in accordance with 29 CFR 5.11. Since the ruling was not appealed within the allotted
time, it became final in accordance with the cited regulations.
APPRENTICES AND
TRAINEES
Soule Glass and Glazing Co.
WAB 78-18, February 8, 1979
Duly registered apprentices or trainees are the only employees covered by
the labor standards provisions of the Davis-Bacon and related Acts and regulations applicable
thereto who may be paid lest than the predetermined wage rate for the work they perform.
Jos. J. Brunetti Construction Co. & Dorson Electric & Supply Co.,
Inc.
WAB Case No. 80-9, November 18, 1982
Where the contractor did not have an approved apprenticeship or training
program registered with either the Bureau of Apprenticeship and Training or a recognized state
apprenticeship agency, and there was no trainee or helper classification on the applicable wage
schedule, the employees must be paid the applicable Journeyman rate for electrician.
Clevenger Roofing and Sheet Metal Co.
WAB 79-14, Aug. 20, 1983
Department of Labor regulations relating to employment of apprentices
and trainees, 29 CFR SS5.2(c) and 5.5(a)(4), are clear that these categories of workers may be
employed only under specific limited conditions. These regulations state that apprentices and/or
trainees may be utilized at less than the predetermined rate for the work actually performed only
if they are individually registered in an apprenticeship council or the Bureau of Apprenticeship
and Training, etc.
Johnson Electric Co.
WAB 80-3, April 11, 1983
For Davis-Bacon purposes, the required wage rate for apprentices is the
appropriate percentage of the Journeyman wage rate which is listed on the prevailing wage
determination, and not a percentage of some other journeyman's rate set by various
apprenticeship committees.
Apprentices are due the full amount of fringe benefits listed on the wage
determination, and not just a percentage of such fringe benefits.
Tollefson Plumbing and Heating
WAB 78-17, Sept. 24, 1979
Employment of apprentices at less than the predetermined rate is
permissible only when they are individually registered in a bona fide apprenticeship program
approved by DOL or with a State Apprenticeship agency recognized by Bureau of
Apprenticeship and Training. Petitioner's submission of work permit cards (Licenses) issued by
S.D. State Plumbing Board, even though originally approved by HUD, do not constitute
registrations in a bona fide apprentice program as required by the Department of Labor
regulations for prevailing wage purposes.
The responsibility for having a bona fide apprenticeship program and
registering employees belongs to the petitioner and not to the contracting agency.
CRC Development Corporation and Don Harris Plumbing Co., Fla.
WAB 77-1, 77-13, Oct. 31, 1977
While Department of Labor Regulation 5.5(a)(4)(i) is not clear as it could
be, this provision has been in effect since the 1950's and has been-interpreted consistently by the
Department to mean that the allowable ratio of apprentices to journeymen had to be maintained
on each construction project subject to Davis-Bacon. It was never intended that
on a project subject to the Davis-8acon Act, a contractor would be able to utilize all his
apprentices, thereby displacing journeymen entitled to work on the job. This would defeat the
purpose of the statutes enacted to protect the interests of laborers and mechanics employed on
government financed or assisted projects.
Regulation 5.5(a)(4)(i) is clear that excess apprentices who are performing
the work of the craft and using the tools of the trade are entitled to the journeyman's wage rate.
Palmer and Sicard, Inc., Brunswick, Maine
WAB 77-12, Dec. 14, 1977
Although petitioner's apprenticeship program for plumbers, which allows
the employment of one apprentice for each five journeymen, has elements of training in
steamfitting and welding, he may not employ one apprentice in each category
(plumbing, steamfitting, and welding) for which he is employing one to five journeymen on
the project. The apprentices will only become journeymen plumbers after completing their
training, not journeymen steamfitters or welders.
Repp & Mundt, Inc. & Goedde Plumbing & Heating Co.,
Inc.
WAB 80-11, Jan. 17, 1984
Although it was occasionally the practice in the vicinity of this project for
Contractors and the union to disregard the ratio of apprentices to Journeymen established in the
collective bargaining agreement, the contractor on this Davis-Bacon project must comply with
the ratios specified by the apprenticeship plan approved by the Bureau of Apprenticeship and
Training (BAT) in accordance with 29 CFR 5.5(a)(4)(i). The regulation was not drafted to permit
business agents to determine when the ratios of apprentices to journeymen could be waived on an
ad hoc basis without BAT approval.
The Board does not see how the Davis-Bacon Act and its implementing
regulations issued to accommodate apprenticeship training programs can be administered at the
enforcement stage unless all bidders at the time of the submission of bids can expect that the
applicable contract provisions and regulation. which require BAT approved apprentices to
journeymen ratios will be applied as written. It seems to the Board that the cost estimators for the
sponsoring agency making the award could only determine whether a job should be awarded by
taking into account costs based upon adherence to apprentice-journeyman ratios per approved
BAT programs in the locality. When the successful bidder does not comply with there ratios on a
Davis-Bacon Act job, it would appear that the award has been secured on either a
misrepresentation or a misunderstanding that the work would be performed in accordance with
the approved BAT apprentices to journeymen ratios. Any such misunderstanding must be
construed against the successful bidder in the absence of clear and convincing justification.
Tap Electrical Contracting Inc. & Calcedo Construction Corp. & Expert
Electric
Inc.
WAB 84-1, March 4 1985
The fact that employees listed as trainees were not individually registered
in a program as required by 29 CFR 5.5(a)(4)(ii) mandates that these workers were entitled to the
journeyman's pay.
Bronx Park I. Bronx Park II. Etc.. Spartan Mechanical Corp. Atlantis Heating
Corp.
WAB Case No. 80-6, April 16, 1984
Other than the apprentice rate, there is no provision for payment of a wage
rate other than the journeyman'. rate in the Davis-Bacon Act and related acts. The responsibility
for having a bona fide apprenticeship program and for the registration of eligible employees in
such a program is the contractor's and not the contracting agency's.
Although criminal acts were allegedly visited upon the projects involved,
these acts cannot be used as an excuse to contravene the employers' obligations to conform to the
labor standards provisions and to observe the employers' obligations to his employees as required
by the regulations. It cannot be shown that the alleged criminal acts perpetrated on the petitioners
prevented them from establishing the apprenticeship and training programs and validly
registering their employees therein.
Miree Construction Corp.
WAB Case No. 87-13, February 17, 1989
A majority of the Board affirmed the Administrator's rulings (1) that only
the actual costs necessary to provide apprenticeship training for apprentices registered in the
ABC Apprenticeship Plan and employed by the contractor are creditable towards Davis-Bacon
prevailing wage obligations, (2) that payments to "the apprenticeship plan for workers in
one craft may not be used to offset Davis-Bacon obligations to workers employed by the con-
tractor in other crafts, and (3) that Davis-Bacon credit is allowed at an "effective annual
rate of contribution," which is computed by dividing the total annual contribution made for
each class of workers for which apprentices were being trained by the total number of hours
worked in the year by journeymen and apprentices in that same classification on both
government and non-government work.
Colonial Realty. Inc.
WAB Case No. 87-37, February 22, 1989
In a case in which it was undisputed that a contractor exceeded the
apprentice/journeyman ratio provided by the plan in which he was enrolled, a majority of the
Board, while recognizing that the general rule provided otherwise, remanded the case to the
Administrator for a determination of whether it was local area practice to ignore the
apprentice/journeyman ratio requirements contained in approved apprenticeship programs. If
such was the case, the majority stated that Area practice has been superimposed on contractual
language and the Administrator should take a no enforcement position under singular facts of this
case.
The majority further stated it viewed the Case as one involving special
features at the enforcement stage and it should not be viewed as an abandonment of the general
rule.
Colonial Realty. Inc.
Supplemental Decision on Request for Reconsideration
WAB Case No. 87-37, September 20, 1989
A majority of the Board denied the Administrator's motion for
reconsideration, but modified its earlier decision to eliminate the remand to conduct a local
survey. By Separate opinions, the members constituting the majority emphasized that the
petitioner was bound by a negotiated agreement, that it had requested journeyman from the local
union but was repeatedly sent apprentices, and that petitioner had not attempted to avoid its
Davis-Bacon obligations by utilizing apprentices instead of journeymen in order to reduce its
labor costs. They concluded the Board had the authority to grant relief to the petitioner in this
case.
J.W. Bateson Co.
WAB Case No. 87-38, December 5, 1989
A majority of the Board held that trainees in a training program approved
by the Veterans Administration under the Emergency Veterans Job Training Act of 1984
(EVJTA) were not due Davis-Bacon wages. The majority concluded the EVJTA program was
excluded from Davis-Bacon coverage by section 4 of the Davis-Bacon Act (40 U.S.C. 276a-3)
which provides "This Act shall not be construed to supersede or impair any authority
granted by Federal law to provide for the establishment of specific wage rates.. The
administrative law Judge's (AM) conclusion was affirmed but the entire Board rejected the ALJ's
determination that the EVJTA was part of the Job Training Partnership Act.
AREA PRACTICE
Prevailing Wage Rates Applicable to the Construction of Lower Potomac
Pollution Control Plant
WAB 77-20, Sept. 30, 1977
The Assistant Administrator correctly issued both building and heavy
wage rates to apply to construction of the subject water and sewer treatment plant even though a
recent survey in the area demonstrated that only a single set of wage rates had been paid on such
plants. When it is clear from the nature of the project itself in a construction sense that it is to be
categorized as either building, heavy, or highway, it is not necessary to resort to area practice to
determine the appropriate categorizations of the project. However, wage rate information from
the survey may be used to establish prevailing building or heavy wage schedules to be used in
the county.
Edwin Vinecki d/b/a Alpine Roofing Co.
WAB 78-22, February 23, 1979
In light of the information received by the Board, the conclusion drawn is
that an area practice of employing roofers to remove old roofing when new roofing is being
installed has been satisfactorily established. This area practice governs the rate of pay applicable
to petitioner's employees engaged in removal of old roofing on the project in question.
Wage Rate for Rebar, Greggo & Ferraro
WAB 82-6, May 11, 1983
The tying of reinforcing iron bars (rebar) on a railroad bridge was correctly
classified as the work of ironworkers. There must be valid substantial evidence and not
inconsistent, unclear and contradictory information to overturn the initial finding of area practice
by the Wage and Hour Division that ironworkers perform rebar work on project similar to the
subject project.
The longstanding principles of Davis-Bacon and related Acts
administration establish the necessity to determine prevailing area practice with respect to which
classification of employees performs a particular type of work in order to determine the
applicable prevailing rate required to be paid.
Wagman, Inc.
WAB 82-2, July 30, 1982
Where the wage decision in question, which contained a schedule of wage
rates for construction over Lana and a separate schedule for construction over water, reflected
negotiated "heavy" construction wage rates, then only "heavy"
construction projects (and not "highway" projects) should be looked at in
determining whether employees who apply a protective epoxy coating to bridge parapet walls
and dividers were correctly classified as painters by the Wage and Hour Division.
Review of Davis-Bacon Wage Decision 77-TX-4174 through 4189 and related
decisions in Texas
WAB 77-19, Dec. 30, 1977
The Assistant Administrator incorrectly omitted wage rates for paving and
Utilities incidental to General Building Construction. from a series of wage determinations for
building construction recently issued in Texas. The record indicates that in Texas one set of rates
prevail for building construction and a different set of rates prevail for the incidental paving and
utilities related thereto. This case is distinguishable from the decision in Lower Potomac
Pollution Control Plant, WAB 77-20, in which the project consisted of both heavy and
building construction, and the incidental work does not become heavy-highway because lower
rates are -paid on it.
Carabetta Enterprises Inc.
WAB 74-4, Jan. 28, 1975
What the prevailing practice is when a project subject to the Davis-Bacon
Act is bid cannot be determined by what employees did after construction begun. Otherwise,
local area practice for any bid job that dominates all the rest becomes nothing more than what the
contractor and the administering agency says it is.
Carabetta Enterprises Inc.
WAB 74-4 and 74-4A, Jan. 30, 1976.
The petitioner, as the moving party, has an initial burden of supporting its
contention with factual data that prior to the advertising for bids there was a practice, or at least a
discernible pattern, that work of the type in question was accepted in the community as different
from the traditional practice among the crafts, and that the work in question was not done by
Ironworkers. The petitioner here produced nothing factual to overcome a presumption of
administrative competence and expertise.
Wage-Hour correctly determined that the work of erecting precast concrete
panels was properly classified as ironworkers' and not carpenters' work. In determining which
classification of worker performs certain work, the local practice must be based on experience in
the industry prior to the issuance of the wage determination in dispute, the pivotal point in time
being when the job goes out for bids with the appropriate wage rates (and work classifications) in
the bid documents.
Prevailing wage rates applicable to the construction of the HUD Intermediate
Care Facility
WAB 74-2, July 12, 1974
Where the Department of Labor has for some time recognized two
categories of building wage rate determinations for the Louisville area, Jefferson County,
Kentucky -- a general building (commercial) wage rate schedule and a residential wage rate
schedule, and the petitioner alleges that 90% of all nursing homes and intermediate health care
facilities in Kentucky were built under the residential wage scale schedule, ESA is directed to
conduct a survey to determine whether the building and construction industry in Jefferson
County has accepted the exclusion from the general building category of projects of a character
similar to the proposed contract work.
Prevailing wage rates applicable to the construction of
Abbott House (Cedar Lane Apartments), and similar construction
projects
WAB 72-5, July 2d, 1972
Wage predeterminations oust be predicated upon careful scrutiny of the
facts and circumstances in each case and on a locality-by-locality basin. The
Mattapony rule, namely, that high-rise residential construction calls for the
application of the commercial or general building construction scale of wages and that
garden-type or walk-up multi-family residential construction calls for lower wage rates,
exonerated the
current area practice followed by the construction industry In that area at that time. It did not
establish a principle to be applied throughout the country. No doubt, in many instances involving
high-rise residential construction, the Division will find commercial rates prevailing and applic-
able. She factual situation in this ease appears otherwise, and would seem to fall within the
Board's recognition as expressed in the Mattapony and
Stevenson cases that a petitioner could establish as area practice that high-rise
residential construction is in feet constructed by laborers and mechanics employed at wage rates
lower than the recognized commercial wage Peale.
Elmer Davis
WAB 80-8, May 4, 1984
The Assistant Administrator did not err in approving the addition of an
electrician's classification and wage rate to the predetermined wage schedule, even though the
wage determination contained a classification and wage rate for lineman. With the exception of
lineman and groundman classifications, every other classification on the wage determination
reflected open shop, non-negotiated wage rates s prevailing. Wage and Hour Conducted an area
practice survey of both negotiated and non-negotiated practice in the area and found that it was
local area practice for electricians to perform the same duties, Wage and Hour was unable to
locate any similar construction in the area that utilized lineman or was performed by Contractors
signatory to the applicable collective bargaining agreement. A laborer or mechanic under the
Davis-Bacon Act is entitled to be paid the prevailing rate for the work performed according to
the local area practice. Be is not entitled to be paid at a higher rate than that prevailing because,
by reason of "inadvertence" the true wage rate was omitted from the wage schedule
when, as is the case here, appropriate steps were duly taken to Correct the inadvertence. It is
further clear that the Assistant Administrator meticulously applied the basic Fry
Brothers, WAB 76-6, principle.
Hawk View Apartments
WAB Case No. 85-20, April 24, 1986
Petitioner was not penalized for using certain classifications (plumber's
helper, irrigation plumber's helper, and utility worker) that were not listed on the federal wage
determination, but were listed on the Nevada State wage determination which also applied to the
project. The Assistant Administrator had denied petitioner's conformance request to add these
classifications to the federal wage determination. The Board ruled use of these requested
classifications did not violate the basic principles of the Davis-Bacon Act and was consistent
with local area practice as established by organized crafts through negotiated agreements.
Phoenix Storm Drain Tunnels
WAB Case No. 87-40, February 22, 1989
A majority of the Board affirmed the ruling of the Administrator that
laborers, and not ironworkers, was the appropriate classification of worker to perform placement
of reinforcing steel during construction of storm drain tunnels in Arizona. In so doing, the Board
found no fault with Wage Hour's decision to limit its area practice survey to a 10-year period.
AUTHORITY TO ISSUE
RULINGS
Prevailing Wage Rates Applicable to MARTA Contract GN-01, Site Clearance,
Grading, Paving and Related Work for the Brown's Mill Road Bus Facilities
WAB 75-11, April 19, 1976
The decisions of the Secretary of Labor under Reorganization Plan 14 are
preeminent within the federal administration, end in the Board's view are not subject to further
judicial review.
Metropolitan Rehabilitation Corp.
WAB 78-25, Aug. 2, 1979
Petitioner's reliance on contracting officer's advice regarding the
appropriateness of wage rate does not relieve petitioner of responsibility to pay the correct wage
rates to employees for two reasons: (1) the contracting officer's advice is not binding on the
Department of Labor and does not estop DOL from requiring the payment of proper wages.
Reorg. Plan No. 14 gives DOL final authority in this regard, (2) the estoppel argument would not
be binding n the laborers and mechanics themselves so as to cut off any individual rights they
may havee under the Davis-Bacon Act to receive the proper wage rate.
Tollefson Plumbing and Heating
WAB 78-17, Sept. 24, 1979
The Department of labor is not estopped from requiring payment of
plumber's rates because HUD misled the contractor and delayed in advising the contractor that its
apprentices were not being properly paid. Advice by a contracting agency is not binding on the
Department of Labor as DOL has the final authority in this regard under the statutes sad
Reorganization Plan No. 14 of 1950.
Fry Brothers Corporation
WAB 76-6, June 14, 1977
Under the Portal-to-Portal Act (29 USC 259) only a written ruling of the
Secretary of Labor can be relied upon as a defense against liability for wages which must be paid
under the Davis-Bacon Act. "Reliance" on an oral Statement by a local official of the
contracting agency cannot be a basis for finding that the contractor has complied with the labor
standards requirements of the National Housing Act, which does not provide any "good
faith" exception.
United Construction Company, Inc.
WAB 82-10, January 14, 1983
It is not the Comptroller General but the Secretary of Labor, pursuant to
the Davis-Bacon Act and Reorganization Plan No. 14 of 1950, who has the sole authority to
determine wage rates, to coordinate labor standards among the contracting agencies, and to
provide for uniform enforcement of the Davis-Bacon and related Acts.
Applicability of the Davis-Bacon Act to Certain site warehouse employees of
equipment dealers under Cores of Engineers contract Dworshak Dam
WAB 72-4 June 1, 1973
A finding and award by the Arbitrator that the work done by employees in
question was not the work of warehousemen and was not covered by the collective bargaining
agreement was not a sufficient legal or f actual basis on which the Board could render a decision.
An arbitration award, whether adverse or favorable to an employee, is not conclusive of a
determination of wage rates under the Davis-Bacon Act by this Board.
Builders, Contractors and Employees Retirement Trust and Pension Plan
WAB Case No. 85-6, December 17, 1986
The issue of whether the plan violated the Davis-Bacon Act is not properly
before this Board because the Administrator's ruling did not address this issue. The Board lacks
jurisdiction to review the determination of the Office of Pension and Welfare Benefit Programs
that the Builders pension plan was not in violation of ERISA.
Arbor Hill Rehabilitation Project
WAB Case No. 87-4, November 3, 1987
Pursuant to Reorganization Plan No. 14 of 1950, the Secretary of Labor or
his designee (the Wage Appeals Board) has jurisdiction and final authority on coverage issues
arising under the Davis-Bacon provisions of the Housing and Community Development Act of
1974.
Quincy Housing Authority
WAB Case No. 87-32, February 17, 1989
The Housing Authority did not have priority over the Department of Labor
to funds withheld at the Department's request for back wages due employees who worked on the
project. The Housing Authority was contractually obligated to withhold funds for unpaid wages
in accordance with the Department's regulations promulgated pursuant to Reorganization Plan
No. 14 of 1950. The Housing Authority's claim to a set-off for damages resulting from the
contractor's abandonment of the contract accrued later than the Department's claim for the
workers.
Although this ruling is inconsistent with a prior ruling of the Comptroller
General, it more adequately effectuates the purpose of the Davis-Bacon and Related Acts. In
addition, the Comptroller General has no authority in Davis-Bacon Related Act matters.