|
<![CDATA[
CCASE:
BELL HELICOPTER FACILITIES
DDATE:
19660922
TTEXT:
~1
[1] UNITED STATES DEPARTMENT OF LABOR
WAGE APPEALS BOARD
In the Matter of:
BELL HELICOPTER FACILITIES I WAB Case
The determination of the prevailing wage No. 66-04
rates applicable to the construction of an
assembly plant and related construction at Dated:
Bell Helicopter Facilities at Saginaw, September 22, 1966
Tarrant County, Texas
Before: SMITH, Chairman, and BARKER and ROTHMAN, Members.
DECISION AND ORDER
I.
This is a proceeding under Order No. 32-63, as amended, of
the Secretary of Labor, following a petition for review filed by
the Texas Heavy-Highway Chapter of the Associated General
Contractors of America (hereinafter referred to as the AGC) on May
12, 1966, pursuant to the Wage Appeals Board's rules of procedure
(29 CFR Part 7).
The petition requests review of a decision dated March 23,
1966, of the Solicitor of Labor under the Davis-Bacon Act
determining prevailing wage rates /FN1/ for certain construction at
the Bell Helicopter Globe Aircraft Plant, Saginaw, Texas,
consisting of conventional aprons, roads, pads, tanks,
prefabricated assembly hanger and support facilities. [1]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
/FN1/ Section 1 of the Davis-Bacon Act (40 U.S.C. 276a) requires
contracts subject thereto to contain "a provision stating the
minimum wages to be paid various classes of laborers and mechanics
which shall be based upon the wages that will be determined by the
Secretary of Labor to be prevailing for the corresponding classes
of laborers and mechanics employed on projects of a character
similar to the contract work in the city, town, village, or other
civil subdivision of the State in which the work is to be
performed." This standard is applied in the applicable rules of
the Secretary (29 CFR Part I) in the following definition of the
term "prevailing wage rate" in section 1.2(a) of those rules:
[1][FN1 CONTINUED ON PAGE 2] The term "prevailing wage rate" for
each classification of laborers and mechanics which the Solicitor
shall regard as prevailing in an area shall mean: (1) The rate of
wages paid in the area in which the work is to be performed, to the
majority or those employed in that classification in construction
in the area similar to the proposed undertaking, (2) in the event
that there is not a majority paid at the same rate, then the rate
paid to the greater number: Provided, Such greater number
constitutes 30 percent of those employed: or (3) in the event that
less than 30 percent of those so employed receive the same rate,
then the average rate.
The wage determination duties of the Secretary of Labor under
the Davis-Bacon Act have been delegated to the Solicitor of Labor.
United States Government Organization Manual, p. 351 (1966). [END FN1]
~2
[2] The Solicitor of Labor initiated a proceeding on the wage
determination with a notice of hearing sent by telegram to the
interested parties on January 14, 1966. On January 25 and 26,
1966, a hearing was held before Hearing Examiner E. West Parkinson.
On February 15, 1966, the Hearing Examiner determined that the
"building construction rates prevailing at the time of the opening
of bids on the Bell Helicopter Company Globe Aircraft contract area
are applicable to all the construction activity at said plant at
Saginaw, Texas." The Hearing Examiner relied upon the wages paid
upon the several large projects which were considered "similar" for
wage determination purposes. The projects were the following: the
General Motors Chevrolet Assembly Project, the American Cyanamid
Project, the Bell Helicopter Plant at Grand Prairie, the Bell
Helicopter Plant at Hurst, and "to a lesser extent," the Turnpike
Municipal Stadium.
On March 23, 1966, the Solicitor of Labor issued his decision
which is now the subject of our review, affirming that of the
hearing examiner. Upon reconsideration, the Solicitor reaffirmed
his decision on April 12, 1966. [2]
~3
[3] The AGC and the Fort Worth Building and Construction Trades
Council have filed written presentations with the Board and, along
with the Building and Construction Trades Department, AFL-CIO,
participated in an oral hearing before the Board on August 5, 1966.
The parties were afforded an opportunity to file posthearing
presentations by August 18, 1966, and have availed themselves of
this opportunity.
II.
The project in question may be briefly described. The overall
planned undertaking, all within the boundary fence of the plant,
includes road work, installation of underground fuel storage and
car parking facilities, removal and replacement of existing
runways, installation of utility pads for water and air, relocation
of control tower, provision for underground electric system, and a
prefabricated assembly building with 50,000 square feet of space
with concrete and asphalt aprons outside the building, provision
for a 500,000 gallon ground storage facility for fire protection
and 20,000 feet of security fencing around the plant. The
specifications for the project in question estimate the total cost
at $1,036,000, of which $683,000 relates to the construction of the
assembly hangar and $353,000 relates to grading, paving and related
utilities.
By agreement of the parties, the scope of review is limited to
the "paving" involved in this work. This consists of road, apron,
and pad construction. Also by agreement of the parties, the scope
of review is limited to the rates for the classifications of
carpenters, laborers, and power equipment operators. [3]
~4
[4] III.
The AGC contends that the Solicitor in affirming the hearing
examiner's decision has erred essentially for the following
reasons: (1) the General Motors project heavily relied upon by the
Hearing Examiner involved only about 2 percent paving, whereas the
Bell project in question involved about 35 percent paving; (2) the
Hearing Examiner should have included similar construction at Fort
Wolters in Parker and Palo Pinto Counties; (3) other projects
involving both paving and building construction in Tarrant County
should have been considered even though they were of less magnitude
than the Bell project; (4) the Hearing Examiner erred in not
including evidence of wages paid on alterations of existing
facilities at Carswell Air Force Base in Tarrant County; and (5)
even looking only at the projects found similar by the Hearing
Examiner, it was the prevailing practice to pay "heavy-highway"
rates.
The Building and Construction Trades Council, AFL-CIO, Fort
Worth, and the Building and Construction Trades Department, AFL-CIO
oppose the petition for essentially the same reasons relied upon by
the Solicitor for support of his decision. These were briefly that
the paving was integrally related to the building construction and
that, for such projects of like magnitude (and therefore similar),
it was the prevailing practice ln Tarrant County to pay the
building wage rates on the paving work.
IV
Upon examination of the record before the Wage Appeals Board,
and after consideration of oral argument and post hearing briefs,
the Board concludes that the Solicitor should make specific
findings concerning the application of the term "prevailing wage
rate," as defined in section 1.2 (a) of the [4]
~5
[5] applicable rules of the Secretary of Labor. These findings should
include consideration of the wages paid on: (1) the paving portion of the
projects considered by the Hearing Examiner to be of a character
similar to that being undertaken, (2) the paving portion of the
projects in Tarrant County rejected under the similarity standard
solely because of small size or magnitude, and (3) the grading and
paving work on the project at Carswell Air Force Base for the
construction of a service club addition and recreation gymnasium.
All of the Solicitor's wage determination is not in issue.
Only that portion relating to the employment of laborers,
carpenters, and power equipment operators on paving work is in
issue. The findings of the Hearing Examiner, which have been
adopted by the Solicitor, are too general for us to determine
precisely how the term "prevailing wage rate" has been applied on
the matters that are in issue.
Our request for inclusion of wages paid on projects which
have been rejected solely because of their small size or magnitude
stems from our view that a difference in size or magnitude, which
is primarily a difference in degree rather than a difference in
kind, may or may not be a relevant test in distinguishing projects
under the Act's similarity standard. Whether or not such a
distinction is valid depends upon whether such a difference has a
significance in terms of local prevailing wage practices. There is
nothing convincing in the record before us which suggests that a
criterion of size has any such significance in Tarrant County.
The rejection by the Hearing Examiner of wages paid on the
abovementioned project at Carswell Air Force Base (Corps of
Engineers Exhibit No. 3, AGC Exhibits 5 and 14a: Tr. 34, 234, 261)
was error. The fact that [5]
~6
[6] the work was contracted for under a wage determination of general rather
than particular application is of no moment. Also, the fact that to some
extent the project involves additions or alterations to preexisting
facilities does not make it dissimilar from the project before us.
We reject the contention of the petitioner that similar
construction at Fort Wolters in Parker and Palo Pinto Counties
should have been considered by the Solicitor for the reason that
there is ample similar construction in Tarrant County. See section
1.6 of the Department's applicable rules, which seems to bar going
beyond Tarrant County under these circumstances.
We withhold any consideration of any remaining questions
presented by the case until such time as it becomes clear that a
decision concerning them is essential to the disposition of the
petition before us.
ORDER
The case is hereby remanded to the Solicitor for further action
in accordance with the principles and directions set forth above.
Washington, D.C., September 22, 1966
Oscar S. Smith, Chairman
Clarence D. Barker, Member
Stuart Rothman, Member
WAGE APPEALS BOARD [6]
]]>
|
