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<![CDATA[
CCASE:
WILL ROGERS WORLD AIRPORT
DDATE:
19660322
TTEXT:
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[1] UNITED STATES OF AMERICA
DEPARTMENT OF LABOR
DECISIONS AND ORDERS OF THE WAGE APPEALS BOARD
In the Matter of
WILL ROGERS WORLD AIRPORT Oklahoma WAB Case
City, Oklahoma; The Determination of No. 65-04
the Prevailing Wage Rates Applicable Dated
to Construction of Terminal Apron, March 22, 1966
Wage Decision AD-18,740,
Federal Aviation Administration,
Petitioner.
Before: Oscar S. Smith, Chairman, Clarence D. Barker
and Stuart Rothman, Members.
DECISION OF THE BOARD
This is a proceeding under Order No. 32-63 of the Secretary of
Labor, as amended, following a petition for review filed by the
Federal Aviation Agency on December 7, 1965, pursuant to the Wage
Appeals Board Rules of Procedure (29 CFR Part 7). Petitioner
requests review of Revised Wage Rate Determination No. AD-18,740.
The wage determination applies, among other things, to the terminal
apron at the Will Rogers World Airport, Oklahoma City, Oklahoma. [1]
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The Building and Construction Trades Department, Afl-CIO,
responded to the petition January 7, 1966, and the Office of the
Solicitor responded on February 4, 1966.
Wage Determination No. AD-18,740 was issued pursuant to the
Federal Airport Act (49 U.S.C. 1114) and Department of Labor
Regulations, Part 1 (29 CFR Subtitle A).
Petitioner presents for review the questions of where and when
the line is to be drawn between the application of heavy and/or
highway wage rates and building wage rates in connection with
terminal aprons and similar appurtenances in proximity or adjacent
to terminal building construction in airport developments subject
to the provisions of the Davis-Bacon wage predetermination
provisions of the Federal Airport Act.
The facts, succinctly stated, are as follows. FAA made its
original wage determination request on January 8, 1965. AD-10,729
was issued January 20, 1965, applying heavy and highway rates to
the construction of terminal aprons and drainage and drainage
structures. The determination expired May 20, 1965, and was
reissued on May 12, 1965 as AD-18,740 for terminal aprons,
drainage, and drainage structures, plus runway-lights. Shortly
before bid opening date, the Oklahoma Building Trades Council
protested the decision. The Solicitor in a letter to the
Petitioner dated August 30, 1965, stated that at the time AD-18,740 [2]
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[3] was issued he was unaware that the construction of
a terminal building concurrently with the construction of the
terminal aprons was a part of the development plan. An attempt to
have the city of Oklahoma City suspend bid opening was
unsuccessful. The contract was awarded July 6, 1965, to the
Metropolitan Paving Company. The contractor is established in the
area and bargains with the Oklahoma Building Trades Council. After
the contract was awarded, there was considerable discussion between
representatives of the city of Oklahoma City, FAA, the Building
Trades Council, and the Solicitor's Office. The Solicitor, by
above-mentioned letter dated August 30, 1965, advised FAA that the
building construction wage rates schedule, and not the heavy and
highway wage rates schedule as initially issued, was applicable to
the construction of the terminal aprons, and the Solicitor enclosed
a "schedule contract for the subject work" (see statement of
Solicitor dated February 4). The Solicitor on October 1 responded
to a telegraphic inquiry on September 27, 1965, by the Mayor of
Oklahoma City indicating that the August 30, change of AD-18,740
was not mandatory.
The City has proceeded with the construction of the terminal
apron pursuant to the initial wage determination and has applied
the heavy and highway wage rate schedule.
The FAA makes clear its concern with future development programs [3]
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[4] generally. It is important to note that its petition does
not indicate that there will be further developments of this nature
in the foreseeable future at the Will Rogers Airport or vicinity.
At page 4 of its petition it says:
. . . To require the "building" wage rate classification
for terminal apron construction work in any project which
includes runway and taxiway construction would, in all
probability, result in the contractors computing their
bid price on the basis of "building" classification for
the entire project because of difficulty in drawing the
line between the two types of work. (Emphasis supplied)
[NO EMPHASIS INDICATED]
The Solicitor, in his Statement to the Board of February 4, said:
The Board is asked to determine prospectively precise
standards for the Solicitor to follow in situations
where, because of area practice, collective bargaining
patterns, or other reasons, a uniform standard is
unfeasible.
The corrected wage determination of the Office of the
Solicitor not only did not reach FAA in the 10 days required before
bid opening to legally become a part of the bid specification, but
it did not reach the FAA before bid opening date at all. It was
sent 55 days after the contract was awarded, and at a time when
everyone concerned knew that it was only complimentary and advisory
and that the City was not going to follow it. The Solicitor knew
at the time the corrected determination was issued that it had no
mandatory effect, and so informed the Mayor. [4]
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[5] In the Matter of Huntsville Madison County Airport
Authority, WAB Case No. 64-01, August 31, 1964, the Wage Appeals
Board ordered the dismissal of a petition for the reason that under
the circumstances that it was not timely filed. The Wage Appeals
Board said:
The petitioner did ask at the hearing conference that if
the relief requested could not be granted, it would like
a further discussion of the case. Having disposed of
this case on the ground that the petition was not timely
filed, the Board is disinclined to comment unnecessarily
on other issues on the state of the record in this case.
This is not to say that in other proceedings the Board
will be unwilling, when it finds it desirable and
necessary, to discuss and to clarify the rules of
decision followed by the Solicitor in a particular case
or to establish principles for future guidance even
though the order of the Board would not effectively
change a wage determination in a particular case. On the
basis of a fuller record than the instant one concerning
the interrelation of area wage, construction contract,
and labor contract practices and patterns, questions such
as these may be considered for purposes of clarification
of the Solicitor's rules of decision, even though a wage
modification could not be timely made in the contract
involved. However, we prefer to leave the questions and
problems of establishing wage determination principles to
future cases and, as noted, dispose of this case on the
narrow ground that the petition was not timely filed.
We do not dispose of this petition on the ground that it was
not timely filed. As far as the applicable wage determination
required by law to be applied in this case is concerned, the record
stands that FAA got the wage rate it asked for and which is being
applied. We do not propose [5]
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[6] to review a specific wage determination which was issued for
complimentary and advisory purposes. The FAA's petition does not protest
the post-determination practices of the Solicitor's Office in issuing
corrections for other purposes with respect to the administration
of the Davis-Bacon and related Acts.
There are no broad or simple solutions to the issues at hand.
They involve essentially questions of fact and the relevance of
area practice considerations. In the light of the relief sought by
FAA concerning a statement of broad principles governing the rules
of decision to be applied to future undetermined apron terminal
work, the necessary factual presentation would not be made from the
record in this case that would be helpful to that general purpose.
We suggest that the FAA and the Wage Determination Branch get
together to try to iron out their differences as to the appropriate
rule of decision to be followed by the Office of the Solicitor in
particular cases of apron construction adjacent to building
construction at airports and that this be done at the design stage
of the work well in advance of bid advertising. The large volume
of airport construction in the country which often includes aprons
and terminals, and the low incidence of contests over whether
building wage rates or heavy and/or highway wage rates apply
indicates it has been possible to avoid a confrontation between the
various segments of the construction industry. [6]
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[7] We shall be prepared to go into this question in a case
which will present the issue in a way which will provide a clear
and meaningful determination.
Order
On the basis of the foregoing, and pursuant to Section 7.8(b)
of the Board's Rules and Regulations, (29 CFR Part 7), the Wage
Appeals Board hereby orders that the petition be, and it hereby is,
dismissed.
Dated at Washington, D.C. this 22nd day of March, 1966.
Oscar S. Smith, Chairman
Clarence D. Barker, Member
Stuart Rothman, Member [7]
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