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<![CDATA[
CCASE:
JEFFERSON COUNTY, TX LEVEES
DDATE:
19680516
TTEXT:
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[1] U.S. DEPARTMENT OF LABOR
WAGE APPEALS BOARD
In the Matter of
WAB
The determination of prevailing Case No. 68-01
wage rates applicable to the
construction of levees in Jefferson DATED: MAY 16, 1968
County, Texas, under Solicitor's
Wage Decisions AH-15,331 and
AH-15,332
Before: Oscar S. Smith, Chairman, and Clarence D. Barker, Member.
DECISION AND ORDER
I.
This is a proceeding under Order No. 32-61, as amended, of the
Secretary of Labor, following a petition for review of the
above-captioned wage decisions filed by the Texas Highway-Heavy
Branch of the Associated General Contractors of America on April
30, 1968, pursuant to the Wage Appeals Board's rules of procedure
(29 CFR Part 7). Written statements in response to the petition
were filed by the Solicitor of Labor and by the International Union
of Operating Engineers, AFL-CIO, the National Joint Heavy and
Highway Construction Committee, AFL-CIO, and the Building Trades
Department, AFL-CIO. An oral proceeding was held on May 10, 1968,
during which interested persons were heard. [1]
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[2] Wage Decisions AH-15,331 and AH- 15,332 were issued to the
Galveston District of the Corps of Engineers on March 19, 1968.
AH-15,331 was issued for the construction of Port Acres Levee
Station 1221 + 20 to Station 1293 + 60, Port Arthur, Texas (Bid
Invitation Number DACW 64-68-B-0094). AH-15,332 was for the
construction of Two Test Levees, Taylors Bayou and Sabine Tank Farm
Area, 1st Stage Station 938 + 40 to Station 1212 + 50, Port Arthur,
Texas (Bid Invitation Number DACW 64-68-B-0095). The proposed
levees are essentially large earthmoving undertakings /FN1/ which
are said by the petitioner to resemble in nature and construction
certain highway projects in Jefferson County. The petitioner
supports his position in this regard with submissions by highway
engineers and considerable technical data.
The petitioner has emphasized that, because of the low terrain
and altitude of this Gulf county, some of the highways are said to
serve a dual purpose of a levee and road system. [2]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
/FN1/ Wage Decision AH-15,331 was issued for a project described
by the Corps of Engineers as follows: The project, in general,
involves the construction of 7,240 linear feet of earth levee with
a bituminous surfaced road on the crown and five ramps. Four
5' x 4' x 200' and four 5' x 4' x 54' multiple box culverts with
headwalls are to be constructed of reinforced concrete. The levee
will be constructed by dragline or other land equipment.
Wage Decision AH-15,332 was issued for a project described by
the Corps of Engineers as follows: The project, in general,
consists of first stage compacted earth levee construction
including two test embankment sections, temporary drainage
structures and a temporary bridge across Alligator Bayou. [2]
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[3] The proposed levees are inland, and are said by the petitioner
not to have the characteristics of marine construction, as do other
levees in the county. The petitioner asserts that the levees do
not require piling, cribbing, riprap, or other materials necessary
to protect the levee from water action upon its embankment and that
they will be constructed by using engineering techniques common to
embankments constructed from dry cuts and fills, subgrading, and
paving.
The Solicitor's counsel and the union representatives
emphasize that these projects are characterized overall as levees
and not highways and therefore are distinguishable from highways
for wage determination purposes. Further, the Solicitor's counsel
asserts that the projects should be considered to be fairly within
the compass of marine construction largely on the strength of the
piling and slope requirements, and that marine construction
operations, such as the construction of levees, are grouped under
heavy construction rather than highway construction in Industry
1621 of the Standard Industrial Classification Manual (1967). The
Manual, published by the Bureau of the Budget, seeks to conform its
classifications to the existing structures of American industry.
II.
Because of the overall resemblance in nature and techniques in
construction between the proposed levees and the highway projects
of the type described to the Board, the petitioner asserts that the [3]
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[4] Solicitor erred in the wage decisions in question by failing
to consider evidence of wages paid on such highway projects. The
petitioner contends that such projects are "of a character similar
to the contract work" involved within the meaning of the
Davis-Bacon Act. The petitioner does not argue in his brief that
only the highway projects should be so considered, nor did we
understand its counsel to argue so in his oral presentation.
In contrast, the Solicitor and the unions argue that the
petitioner is essentially seeking consideration of "work of a
similar nature", a standard contained in the 1931 Davis-Bacon Act,
but replaced in the 1935 amendments to the Act by the similarity of
projects standard.
We are satisfied that there is a substantial likeness between
the proposed levees and the highway projects described to us; i.e.,
those resembling the proposed levees but differing as to ultimate
use. Therefore, the Solicitor is directed to consider projects of
this type in the county as projects similar to the proposed levees.
The fact that projects strongly resembling each other may be
destined for wholly or partially different uses does not detract
from their similar character for wage determination purposes. The
legislative history of the standard suggests that it is not intended
to go so far as to require a coincidence of uses. See Legislative
History of the Davis-Bacon Act [Committee Print], House Committee [4]
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[5] on Education and Labor, 87th Cong., 2d Sess., p.
58 (1962). The employment of terms or labels such as "levee" and
"highway" to characterize a project are not necessarily
controlling, where they only serve to describe the use rather than
the nature of the project involved. A different conclusion could
well lead to absurdities in applying the Davis-Bacon Act to
building construction projects.
We do not hold that resort should be made to highway projects
per se, but only to those of the type described to the Board; i.e.,
those resembling the proposed levees, but differing as to ultimate
use. Further, as we have indicated, we do not understand the
petitioner to suggest that wage rates for the proposed levees be
determined exclusively from those paid on highway projects of the
type described to the Board, and the Board does not so conclude.
It is expected that the Solicitor, in addition, will continue to
look to the wage rates paid on other projects which he has
heretofore considered to be of a character similar to the proposed
levees.
SO ORDERED.
OSCAR S. SMITH, CHAIRMAN
CLARENCE D. BARKER, MEMBER [5]
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