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<![CDATA[
CCASE:
RODMAN DAM AND SPILLWAY
DDATE:
19680418
TTEXT:
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[1] UNITED STATES DEPARTMENT OF LABOR
WAGE APPEALS BOARD
In the Matter of
The determination of the prevailing WAGE APPEALS BOARD
wage rates applicable to construction
of the Rodman Dam and Spillway and CASE NO. 67-11
related earthmoving work in Putnam
County, Florida DATED: April 18, 1968
Cone Brothers Contracting Company,
Petitioner
BEFORE: Oscar S. Smith, Chairman, Clarence D. Barker and Stuart
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 Cone
Brothers Contracting Company on November 6, 1967. An oral
proceeding was held by the Board on March 5, 19680 In the course
of the proceeding, the Board permitted the Building Trades
Department to intervene in the case. The record was left open
until March 25, 1968, for the parties to submit additional
statements to the Board. Additional statements have been filed by
the petitioner and intervenor. The Board denied a motion to
intervene filed by the National Joint Heavy and Highway
Construction Committee on March 13, 1968. [1]
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[2] The petition concerns the Solicitor's wage determination No.
AE 4,506, dated January 3, 1966, for Putnam County, Florida,
included in Contract No. DA-08-123-CIVENG-66-78, a Corps of
Engineers contract for the construction of Rodman Dam and Spillway.
Specifically, the petition is for review of a decision of the
Solicitor confirming that by the Corps of Engineers contracting
officer in a dispute said to be within the purview of Clause 49 of
the contract. The clause reads as follows:
49. DISPUTES CONCERNING LABOR STANDARDS (Jan. 1965)
Disputes arising out of the labor standards provisions of
the contract shall be subject to the Disputes Clause
except to the extent such disputes involve the meaning of
classifications of wage rates contained in the wage
determination decision of the Secretary of Labor or the
applicability of the labor provisions which questions
shall be referred to the Secretary of Labor in accordance
with the procedures of the Department of Labor. (ASPR
7-603.26)
The decision of the contracting officer concerned this
situation. The petitioner had sought authorization under Clause
SP-10 /FN1/ for the use of the classification "Earth Movers
(Building Construction)" at $2.00 per hour for the performance of
earth moving work [2]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
/FN1/ SP-10 reads as follows:
Any class of laborers and mechanics not listed below
employed on this contract shall be classified or
reclassified conformably to the schedule set out below by
mutual agreement between the Contractor and class of
labor concerned, subject to the prior approval of the
Contracting Officer. In the event the interested parties
cannot agree on the proper classification or
reclassification of a particular class of mechanics or
mechanics to be used, the questions, accompanied by the
recommendations of the Contracting Officer shall be
referred to the Secretary of Labor for final
determination. [2]
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[3] incidental to the spillway and a 6' x 8' control structure.
The contracting officer's findings on the request may be summarized
as follows: (1) there were sufficient power equipment
classifications contained in the schedule described "Structures and
Buildings" for the earth excavation and backfilling involved and
that an additional classification was therefore not needed, even
though there was a classification for an "Earth Mover" in the
schedule for "Canals, Levees, Shore Work other than Building
Construction"; and (2) the application of the rates for "Structures
and Buildings" to the work in question was "in keeping with long
established practice" of the Jacksonville District Office of the
Corps of Engineers and it was noted that the Department of Labor
had determined that the rates under the "Structures and Buildings"
schedule were the prevailing rates applicable to the work. Thus,
concerning the second finding it is unclear whether the
determination as to the applicability of the "Structures and
Buildings" schedule was actually that of the Corps of Engineers,
the Department of Labor, or both. In any event, the Board has
jurisdiction to examine the decision of the Solicitor affirming the
application of the "Structures and Buildings" schedule to the
excavation related to the spillway and control structure.
II
The Rodman Dam project's overall cost is $3,000,000 with about
$925,000 being allocated to the construction of the spillway, [3]
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[4]about $54,600 for the excavation work in connection with the
spillway and the remainder of the cost thereof (in excess of
$2,000,000) being for the construction of an earth dam about two
miles in length. Excavation and earth moving work for the structure
involved about 130,000 cubic yards and the remainder of the project
involved about 1,800,000 cubic yards.
It is our understanding from statements made at the oral
proceeding that all work under the contract has not been done
except the closure of the river. The spillway and dam are
completed. The employees engaged in earth moving have been paid at
the minimum rate specified in the heavy construction schedule, but
funds have been withheld covering the differential between that and
the minimum rates for earth moving provided in the building
construction schedule.
III
The essential contention of the petitioner is that, for wage
determination purposes, /FN2/ the classification of earth moving
work in the preparation for the spillway and control structure
should be treated no differently than the other earth moving work
which was [4]
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/FN2/ The pertinent legislative standard is section 1 of the
Davis-Bacon Act (40 U.S.C. 276a) requiring 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." [*]
[*[Emphasis added.]*] [4]
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[5] performed in constructing the earth dam, and therefore should
be characterized as heavy construction rather than building
construction. The petitioner accordingly asserts that the decision
of the contracting officer and the Solicitor that the earth moving
work incidental to the spillway and control house construction
should be characterized as building construction is erroneous.
The Solicitor's position, as expressed in his statement filed
with the Board, is that the earth moving work involved is an
"integral part" of the spillway and control house construction and
therefore should be characterized as building construction for wage
determination purposes. The Building Trades Department, AFL-CIO,
concurs in the position of the Solicitor.
Thus, the essential issue before the Board is a narrow one. It
is whether the excavation for the spillway and control structure
should be considered building construction or heavy construction
for wage determination purposes.
As noted in the Board's decision in [T]he [M]atter of the
determination of the prevailing wage rates applicable to the
construction of an assembly plant and related construction at BELL
HELICOPTER FACILITIES at Saginaw, Tarrant County, Texas (WAB 66-04,
Dec. 28, 1966), "the keystone in administering the Davis-Bacon Act
is the protection of local prevailing wage practices."
Consequently, in applying standards of the Davis-Bacon Act to
determine the similarity of construction projects, it is proper to
consider local or area practices. Normally, the locality or area
is the civil subdivision [5]
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[6] (usually a county) in which the work is to be performed, although a
broader locality or area may sometimes be considered. /FN3/
The petitioner would have us consider the entire central
Florida area in our decision. There is much to be said for this,
particularly in view of the Solicitor's statement that the rates,
other than building rates, are essentially central and southern
Florida flood control rates, which are not limited to Putnam
County. /FN4/
As to the application of the building construction rates, the
Solicitor relies heavily on the wage determination for the St.
Johns Lock (Putnam County), the initial decision for the Canal.
The Board's attention has been directed to that wage determination,
and the Board has been urged to give presumptive weight to it on
the strength of the Board's observation in The Matter of the
determination of prevailing wage rates applicable to the
construction of levees in Jefferson County, Texas, under
Solicitor's Wage Decision AG-7,983 (WAB 67-07, May 5, 1967), that:
. . . [I]n the absence of any evidence of irregularity or
caprice on the part of the Office of the Solicitor, the
Solicitor's wage determination must be accorded a certain
weight as to its validity. The weight to be accorded to
the validity of a Solicitor's wage determination can, of
course, be overcome by cogent proof on the part of the
petitioner . . . .
It is implicit in this observation that an interested person
would have an opportunity to overcome the determination by
cogent [6]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
/FN3/ See 29 CFR 1.6(b).
/FN4/ In this connection in the oral proceeding, the Solicitor's
counsel noted that the caption "130-Florida" precedes rates listed
for heavy construction on the wage determination involved as well
as others in central and southern Florida. [6]
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[7] proof. Such an opportunity cannot be said to be available when
the reasons for the determination are not clearly stated. /FN5/
Also, in support of the building construction rates, the
Solicitor relies upon "wage payment data, negotiated agreements,
and determinations or reports of the Florida Industrial
Commission." /FN6/
The Board believes that the area to be considered should
correspond to that used in the making of the wage determination
schedules involved, which encompasses the central and southern
Florida flood control projects. From this consideration and in
applying the similarity of projects standard of the Davis-Bacon
Act, the Board concludes (1) that in the earth dam construction
there should be no division of wage rates in the case of excavation
for the spillway from other excavation on the job, and (2) that the
applicable schedule or rates for such excavation is that "for
Canals, Levees, Shore Work Other than Building Construction".
Appropriate corrective action should be taken in light of this
conclusion.
In reaching this conclusion we do not quarrel with the
Solicitor's conclusion that the excavation work is an "integral
part" of the spillway and control house construction~ But it is
obviously and more significantly an "integral part" of the other
excavation work on the job as well. [7]
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/FN5/ The Board notes that the validity of the St. Johns Lock
determination is not before it. Its pertinence here is only in
regard to the examination of area practices.
/FN6/ Statement of the Solicitor, dated January 15, 1968. [7]
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[8] IV
In this decision, the Board is aware of the fact that the
essential question involved (i.e., the applicable schedule of
minimum wages for certain earth moving work) could well have been
raised by interested persons before the making of the contract, and
that care should be taken in the administration of the Davis-Bacon
Act not to subvert the Act's objective for the determination of
applicable minimum wage rates before contract awards, so that all
bidders may be aware of them and bid equally concerning them. Wage
determination No. AE-4,506 was issued on January 3, 1966, for the
"Construction of Rodman Dam and Spillway, Cross Florida Barge Canal
Project". The determination contained one schedule of rates for all
construction except dredging. The determination was modified on
January 25, 1966, as follows:
ADD:
Attached schedule for Canals, Levees, Shore Work Other
than Building Construction
Attached Schedule for Road Construction /FN7/
The schedule for "Canals, Levees, Shore Work Other than
Building Construction" (i.e., heavy construction) was preceded by
the caption "130-Florida". As explained by the Solicitor's counsel
at the oral proceeding, the caption indicated the schedule was
extensively used in central Florida for the listed types of
construction. [8]
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/FN7/ Exhibit 2, Solicitor's statement, dated January 25, 1968.[8]
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[9] Other wage determinations for construction in central Florida
using the "130-Florida" schedule contained the following caption:
Canals, Levees, Shore Work [*] and Structures [*]
Other /FN8/ than Building Construction [*[Underscoring
added.]*]
The word "structures" does not appear in wage determination
AE-4,506 even as modified, although by virtue of Amendment No. 4,
the contract itself contained the caption "structures and
buildings" for all rates, except those for dredging and for
"Canals, Levees, Shore Work Other than Building Construction."
The ultimate designation "structures and buildings" may be
read as reserving only these two items from the heavy construction
rate schedule, and thus as leaving all earth moving within the
compass of that schedule. On the other hand, the continued use of
the term "building construction" in an exclusion contained in the
caption for canals, levees, shore work, etc., might suggest that
something broader was intended.
From this, it appears to the Board that the critical terms of
the contract are ambiguous, and resort to the procedures
described [9]
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/FN8/ See Decision No. AE-13,294, dated March 9, 1965, for:
"Construction 30' x 90' navigation lock; 3-bay spillway structure,
vehicle service bridge, 8 miles tieback levee, stabilized access
road, concrete culvert with headwalls, 800,000 cu. yds. bypass
canal, Structure 65A, Central and Southern Florida Flood Control
Project".
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[10] in Clause 49 was appropriate insofar as labor standards
provisions are involved.
SO ORDERED.
OSCAR S. SMITH, CHAIRMAN
CLARENCE D. BARKER, MEMBER
STUART ROTHMAN, MEMBER
WAGE APPEALS BOARD [10]
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