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CCASE:
STANFORD LINEAR ACCELERATOR CENTER V. SOL
DDATE:
19650412
TTEXT:
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UNITED STATES OF AMERICA
DEPARTMENT OF LABOR
DECISIONS AND ORDERS OF THE WAGE APPEALS BOARD
In the Matter of:
THE DETERMINATION OF COVERAGE
UNDER DAVIS-BACON ACT OF CERTAIN WAB Case
WORK IN ASSEMBLING 40-FOOT MODULES No. 65-02
AT STANFORD LINEAR ACCELERATOR
CENTER, PALO ALTO, CALIFORNIA DATED:
April 12, 1965
Messrs. Hudson B. Ragan of U.S. Atomic Energy Commission,
and Daryl Craig Dawson of Stanford University
for petitioners.
Mr. Paul A. Tenney,
for Solicitor of Labor.
Messrs. Thomas X. Dunn and William J. McSorley,
for Building & Construction Trades Council, AFL-CIO.
Messrs. Patrick C. O'Donoghue and Eugene W. Bradshaw,
for United Association of Journeymen and
Apprentices of the Plumbing and Pipefitting
Industry.
Messrs. Thomas X. Dunn and O. A. Rieman,
for International Brotherhood of Electrical Workers.
Before BARKER and ROTHMAN, Members. [1]
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DECISION
STATEMENT OF CASE
This is a proceeding under Order No. 32-63 of the Secretary of
Labor, as amended, following a petition for review filed jointly on
February 23, 1965, by Leland Stanford Junior University and the
U.S. Atomic Energy Commission, hereinafter called the petitioners,
pursuant to the Wage Appeals Board Rules of Procedure, Part 7, (29
CFR, Subtitle A). The petition requests review of an opinion dated
January 13, 1064, by the Solicitor of Labor, U.S. Department of
Labor, that certain work being performed by the University under
contract No. AT(04-3)-400 for the Atomic Energy Commission, issued
pursuant to the Davis-Bacon Act, (40 U.S.C. 276a et. seq.) and
Department of Labor Regulations, Part 5 (29 CFR, Subtitle A).
The January 13 opinion of the Solicitor applies to the
assembly or fabrication of four 10-foot waveguide sections into a
single 40-foot section or module at Building No. 5, Central
Laboratories at Stanford, which is subsequently transported to the
housing, a concrete tunnel below ground and a gallery above ground
and installed as a part of the overall two-mile linear accelerator
project.
All known interested parties were notified that the petition
had been filed and were requested to submit written statements by
March 17, 1965. By virtue of the highly technical and complex
methods employed ln the construction of the linear accelerator the
Board announced that it would make a visitation to the Stanford
Linear Accelerator Center, hereafter called SLAC. Representatives of
the Solicitor had previously visited the site of the work. All interested [2]
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[3] parties were advised March 12 of the proposed
visit to the Stanford installation and were invited to accompany
the Board on its tour. The Office of the Solicitor was requested
to send a representative of its Wage Determinations Division to
participate in the visitation. The purpose of the visit, as stated
by the Board in its invitation, was to prepare the Board to
properly understand subsequent argument and statements concerning
the issues in dispute.
Listed below are those persons in attendance, along with the
name of the organization which they represented:
Messrs: Affiliation
Barker
Rothman
Rivers Wage Appeals Board
Tenney Office of the Solicitor of Labor
Bradshaw
Spalding
Abruscato UA
Simonds San Mateo County BTC
Mohr
Ragan
Hiestand AEC
Grant Aetron-Blume-Atkinson
Panofsky
Dawson
Field Stanford
Thomas IBEW
The announcement stated that in the absence of an all-party
agreement to hold the hearing at Stanford, an oral hearing would be
held in Washington at a date subsequently to be announced. Upon
the conclusion of the Board's tour of the site on March 24, it
announced to all parties present that a hearing would be held at
2:00 p.m. on [3]
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[4] Friday April 2, 1985, in Conference Room 102,
Main Labor Building, U.S. Department of Labor, Washington, D. C.
Subsequently, written, notices of the hearing were mailed to all
interested parties. The following organizations, although notified
that the petition had been filed did not submit statements in this
case:
Associated General Contractors of America
Building and Construction Trades Department, AFL-CIO
Building and Construction Trades Council of San
Mateo County, California
National Constructors Association
The International Brotherhood of Electrical Workers, the
United Association of Journeymen and Apprentices or the Plumbing
and Pipefitting Industry, Stanford University, and the U.S. Atomic
Energy Commission filed written statements in advance of the
hearing, as did the Solicitor of Labor.
The petitioners and the Solicitor through respective counsel,
presented argument at an oral hearing pursuant to the agreed notice
on April 2, 1965. The Building and Construction Trades Department,
AFL-CIO the International Brotherhood of Electrical Workers, and
the United Association of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry, through respective counsel, also
participated in the oral argument.
FINDINGS OF FACT
THE PROJECT
The overall SLAC project involves expenditures in excess of
$130,000,000 and may be divided roughly into three phases: (1) the
construction of the office building and shops necessary to fabricate [4]
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[5] component parts and to assemble the component
parts of the accelerator, (2) the actual installation of the
two-mile accelerator, and (3) the construction of the housing for
the accelerator on a two-mile strip and the construction of a
target building.
A linear accelerator is more popularly known as an atom
smasher. This particular version is a further development of the
prototype linear accelerators devised during the last decade by
Stanford University, and is a contrast to the circular accelerators
now in use at the Brookhaven National Laboratory in New York, the
Argonne National Laboratory near Chicago, CERN Laboratory at
Geneva, and in other parts of the world. The earlier linear
prototypes developed by Stanford were designed, the parts
manufactured and the accelerator fabricated in the existing shops
and offices of the University proper. The techniques used in the
development of the prototype became the basis for the subsequent
manufacture and fabrication of the complex two-mile long
accelerator now being constructed.
Basically there are two purposes for high energy accelerators:
(1) To enable the physicist to see the objects he is studying --
the protons, neutrons, and the many other kinds of particles that
are the elementary constituents of all matter. Accelerators in
this sense are like microscopes enabling the physicist to study
particles a billion times smaller than the smallest object that can
be seen with an optical microscope. (2) The accelerator is used to
create new particles. Given enough energy, the Board is informed
that all the thirty different kinds of elementary particles now
known can be created by processes in which energy is converted into mass. [5]
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[6] The Stanford accelerator is suited to ,both of these basic
purposes. For "seeing" the structural details of subnuclear
particles, it will have no equal. Also, the combination of high
energy and high intensity will make the machine an abundant source
of all known elementary particles.
The heart of this unique and complex instrument is a
two-mile-long disc-loaded waveguide consisting principally of a
series of the 40-foot modules the fabrication of which is at issue
in this proceeding. At one end of the waveguide an electron gun
injects short bursts of electrons 360 times a second. The
electrons are driven forward by traveling waves of radio energy
from klystron tubes injected into the waveguide at certain
intervals. The klystron tubes and much other equipment is housed
in the gallery above the tunnel. The electrons strike a target and
observations are made of the resulting deflection patterns.
Knowledge thus gained will lead to a better understanding of the
mysteries of the subnuclear universe.
In greater detail, the accelerator's purpose is to propel
electrons to high velocities and energy levels for use in particle
physics research. The electrons speed down the linear accelerator,
propelled by radio waves from klystron tubes which are spread at
ten-foot intervals. The accelerated electrons strike a target and
observations and analyses are made from the deflection patterns and
the resulting creation of new particles.
The part which actually accelerates the electrons is an
accurately fabricated tube made of copper disks and rings machined [6]
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[7] to very close tolerances. This is the "disk-loaded
waveguide". The disk-loaded waveguide assembly is fabricated in
40-foot modular lengths and placed end-to-end to form the two-mile
long accelerator. The accelerator is described by the AEC as
essentially a precision instrument.
A 40-foot disc-loaded waveguide cannot be made in one piece at
this time. The longest piece of the disc-loaded waveguide that can
be feasibly made in one piece is 10 feet. Each 10-foot piece is
formed of 85 "disks" and two end plates, all 4" in outside
diameter. The spaces are 1.147-inch pieces of copper pipe; the
disks are 0.230 of an inch thick; and the two end plates are 0.7629
of an inch thick. The 86 spaces each have a different inside
diameter; one differs from the next by about 3/4 of a thousandth of
an inch. Likewise, each of the 85 disks has a different aperture
size, ranging from 1.0323 inches to 0.7517 of an inch over the
10-foot piece. Each ten-foot section is brazed together in a
special furnace. Four ten-foot lengths and such other equipment
and paraphernalia are then joined and fabricated together into the
40-foot modules.
This assembly consists of a 40-foot long 24-inch diameter
aluminum pipe on supports, which becomes the supporting beam.
Attached to the top of the beam are adjustable supports for the
waveguide (which is in 10-foot sections), waveguide connections for
the klystron tube lines, vacuum lines, coolant lines, shielding and
degaussing cables. Targets and sights are attached to both the
interior and exterior of supporting beams for alignment and
calibration. Exterior sights are used with optical equipment and
interior targets are used with a laser beam under low pressure vacuum. [7]
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[8] The assembly of the 40-foot segments takes place in a
permanent fabrication building, one of three large and permanent
buildings which will service the accelerator.
After the 40-foot sections are completely calibrated they are
moved to the accelerator tunnel, 25 feet underground, lowered into
the tunnel, and moved longitudinally into final position secured to
the adjoining section, leveled and otherwise adjusted.
This accomplished, proper piping and connections are made for
waveguides, coolant and vacuum lines from equipment in the
galleries.
The labor cost of the disputed assembly work involved has been
estimated to be about $84,000 to $100,000. This represents the
employment of sixteen workmen over an eighteen-month period.
The disputed work involves the following stages:
(1) Joining of four 10-foot basic sections of the disk-loaded
waveguide of the top of a 40-foot aluminum pipe supporting
structure about two feet in diameter;
(2) Mounting of the rectangular waveguides which feed the
electrical power impulses to the disk-loaded waveguide at 10-foot
intervals;
(3) Installation of degaussing wires and shielding which run
parallel to the disk-loaded waveguide, and which neutralize the
magnetic field;
(4) Installation of numerous water coolant pipes;
(5) Installation of vacuum piping and fitting; and
(6) Aligning of components. [8]
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[9] The assembly work takes place in a permanent fabrication
shop. It is the same shop where the 10-foot components, which
comprise the 40-foot units, are made. There are about 244
employees in this shop who are engaged in fabrication or assembly
work or both.
SUMMARY OF SOLICITOR'S ACTIONS
On July 15, 1964, the International Representative of the
International Brotherhood of Electrical Workers in San Francisco,
California, wrote the Solicitor of Labor requesting a ruling on the
application of the Davis-Bacon Act to certain assembly and
installation work to be performed at the Stanford Linear
Accelerator Center, Stanford, California. The work was to be
performed under contract No. AT(04-3)-400 for the design and
construction of the accelerator. This letter was in effect an
appeal from a June 26 decision of the Atomic Energy Commission area
manager at Palo Alto that the assembly and installation of the
disc-loaded waveguide and its ancillary components was not covered
by the Davis-Bacon Act. The area manager in his letter stated:
It is my decision that the manufacture and assembly work
of the Disk-Loaded Waveguide being performed in the Shops
Complex, which results in a functionally complete 40-foot
segment or structure, noncovered. The transportation of
the 40-foot piece of equipment from the Shops Complex and
its installation in the Accelerator Housing is considered
to be covered work within the meaning of the Davis-Bacon
Act.
On September 17 and 18, 1974, a joint visit was made to the
SLAC site by the Atomic Energy Commission and the Department of Labor. [9]
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[10] By letter of March 17, 1964, the United Association also
urged a ruling from the Office of the Solicitor to the effect that
the Davis-Bacon Act applied to the installation and assembly work
involved.
Subsequently, on January 13, 1965, the Solicitor of Labor
advised the Atomic Energy Commission that in his opinion the
Davis-Bacon Act applied to the installation and assembly work in
question.
Thereafter, the Atomic Energy Commission and Stanford orally
requested the Solicitor to reconsider his decision. The Solicitor
declined to change his decision and so notified the Atomic Energy
Commission and Stanford. Whereupon the Atomic Energy Commission
and Stanford petitioned the Department's Wage Appeals Board for a
review of the ruling of the Solicitor in the matter.
This part of the work is the only part of the work which has
been directly questioned, but the Solicitor has neither questioned
nor applied the Act to the other parts of the work in the Central
Laboratories Building involved in preparing the 40-foot modules.
From the brief and argument of the Office of the Solicitor the
Atomic Energy Commission determination in this matter is viewed as
correct in all respects except for the ruling with regard to the
assembly of the 40-foot module.
ISSUES AND CONCLUSIONS
Issues raised by petition include: (1) Should a decision by
the Atomic Energy Commission with respect to the application of the
Davis-Bacon Act under its applicable rules (41 CFR, part 9-12) be
considered controlling? (2) Does the assembly of the 40-foot [10]
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[11] modules constitute "construction"? (3) If it is
"construction", whether or not it is de minimis.
At the hearing, counsel for petitioners contended
pertinaciously that the decision of the Atomic Energy Commission
should be accorded strong presumptive validity. We assume that the
Atomic Energy Commission is urging that agency decisions should not
lightly be set aside. It is always assumed that agencies are
acting in good faith when they are performing their official
duties. The Wage Appeals Board does not take a different view. A
decision as to the Act's coverage must be set aside when the weight
of the evidence demonstrates that it is not in accord with the Act
and regulations issued pursuant thereto. This conclusion is
supported by Reorganization Plan No. 14 of 1950 and, indeed, the
Atomic Energy Commission rules contemplate a final decision by the
Department Or Labor. See 41 CFR 9-12.5004-2(h)(5).
The Board is called upon for the first time to determine
whether or not certain work is subject to the provisions of the
Davis-Bacon Act that is, whether employees engaged upon that work
are entitled to the protections of the Act.
Inquiry into whether certain work is "construction, alteration
or repair" work for purposes of the application of the Act is by
and large a matter of fact. Inquiry must begin by looking at the
work itself to determine whether or not it should be subsumed under
recognized categories of construction, repair or alteration of a
public building or public work. When questioned work is examined
for purposes of determining coverage under the Act, it must be
viewed through the eyes of persons experienced in building and
construction matters who have developed expertise in the
application of the Act to a wide range of activities. [11]
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[12] Based upon the files and records made available to the Board
by the Office of the Solicitor, the Statement of the Solicitor, the
Briefs submitted, and arguments made by the parties and interested
persons at the hearing, taken as a whole, the Board concludes that
the work in question is not covered work subject to the provisions
the Act.
We do not think that the residing parties have spelled out any
meaningful degree of functional difference and autonomy between the
assembly of the 40-foot module and the other fabrication work that
goes on in Building No. 5, which will support a rational
differentiation of one type of work from the other.
There are components housed in the klystron gallery which are
fabricated as units in the central laboratory which are not
covered. There is the fabrication of rectangular waveguides with
brazed and assembled parts thereon done in the central laboratory
which are added to the 40-foot module and which are not covered.
There is the 10-foot disc-loaded waveguide itself, which concededly
is not covered. If a distinction is sought to be drawn between
light assembly work as not covered and heavy assembly work which is
covered as was attempted in the hearing, then we do not see a
sufficient degree of technological distinction in making and
completing the 40-foot section from making and completing the other
work to warrant placing one type of work in a separate category
from the other work, all performed in the central laboratory.
The Wage Appeals Board reaffirms the principle that on-site
work or project work which is removed from the site for the
facility or convenience of the contractor is covered work. But in
this case the Board is required to reject the contention that the
questioned [12]
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[13] work can be adequately separated from the
noncovered production activities to justify separate treatment
under the Davis-Bacon Act. We do not see that to do so would
effectuate the purposes of the Act in any meaningful way.
The primary activity at the central laboratory in producing
and fabricating the 40-foot module is, for practical purposes, an
integrated operation which precludes the work which takes place
there from over-fragmentation for the purpose of applying the
Davis-Bacon Act to some 16 employees out of about 244 employees.
Despite the contention that the work is in a separate work
place in the central laboratory, we cannot so find. The employees
who are not covered and those in question here work in the same
large room. While the area where the 40-foot module is assembled
is at one end of the room, this is only a matter of convenience to
have the space and to permit the 40-foot module to be moved out
conveniently. Other employees working in the same room are not
separated from these employees by as much as an aisle. The space
arrangement simply facilitates a logical sequence of production for
making the 40-foot module from raw materials and other parts
fabricated in the laboratory or brought in from elsewhere.
The 10-foot sections and other components placed on the
40-foot girder are located in the same large room and are brought
to the girder in no particular order or sequence. The Board must
reject the Solicitor's contention that the total operation is not
so integrated as to preclude the establishment of Davis-Bacon wage
rates for the assembly of the 40-foot girder and not for all the
other work undertaken in the central laboratory pertaining to the
performance of the work under the contract. [13]
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[14] We look at the production of the 40-foot module from the
fabrication of the raw copper sheets and tubes and the work on the
other component parts to the completion of the 40-foot section as
a primary production operation not subject to the Davis-Bacon Act
under the unique and special circumstances found in this case.
Indeed, the furnace for brazing the 10-foot unit lies beyond the
area where the 40-foot assembly takes place, and the employees,
concededly not covered, would be moving back and forth through the
area where the questioned employees would be working if they were
covered.
The skills, techniques, and types of equipment used for making
and testing equipment other than the 40-foot module and for the
40-foot module are similar throughout the plant even though certain
highly sensitive gauges and hydraulic presses are required for the
10-foot section.
While the two-mile linear accelerator is a modern scientific
piece of nuclear machinery for purposes of scientific experiments
and when installed will be a single piece of equipment, its
installation in the gallery and tunnel is, by accepted and time-
tested Davis-Bacon principles, a public work of the United States
and is covered.
It is conceded and it is not an issue in this case that any
employees who leave the area of the Central Laboratory land go on
the site of the accelerator housing, that is, the gallery and the
tunnel, to work there would be subject to the Act when so engaged.
Central Laboratory Building No. 5, while built recently and
under a contract which includes the accelerator project, is a permanent [14]
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[15] structure for nuclear research and as such is
integrated with a complex of nuclear scientific undertakings at
Stanford University. It is, and will be, devoted to these uses on
a permanent basis serving on site and off site activities. Without
having to decide whether building is directly upon the site of
construction or not, the Board concludes that under these
circumstances even if it were within the perimeter of the
construction site, that factor alone cannot be controlling here.
We recognize and do not reject the argument of the interested
labor organizations who have appeared in this case that employees
whom they usually represent have the skills and can and do perform
the work in question. We also recognize, however, that such
employees can and are frequently engaged in non-construction work.
We look at the work involved.
We reject the contention of the petitioners that any principle
of de minimis could be applicable to this case. Petitioner argues
that in comparison to the cost of the overall project of some
$130,000,000, this is such a trivial sum as to be insignificant.
The amount of work in question, approximately $84,000 to $100,000,
is more than substantial to be subject to the Act if it were
determined that the work is covered.
In the past there have been a number of efforts to formulate
expressly and by universal principles, exactly when a questionable
work or activity is or may be covered work. We do not believe it
will serve the purpose of an efficient and realistic administration
of the Davis-Bacon Act to establish such formulas, but suggest that
each case must be evaluated on the basis of its own particular
facts. For the reasons noted earlier in this decision,
determinations of the kind here involved are dependent on the
particular facts as they relate to the inquiry in which the
question is raised. This decision [15]
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[16] cannot form the basis for any broad predicate that work of the type
here involved would or would not be subject to the coverage of the Act
in a different factual context.
ORDER
On the basis of the findings of fact and conclusions of law
and pursuant to section 7.8(a) of the Board's Rules and
Regulations, the Wage Appeals Board finds that the assembly of the
40-foot module is not "construction" work covered under the
Davis-Bacon Act.
Dated at Washington, D. C.
this 12th day of April, 1965.
Stuart Rothman, Member
Clarence D. Barker, Member
WAGE APPEALS BOARD [16]
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