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<![CDATA[
CCASE:
J. FRASER AND SONS V. SOL
DDATE:
19681007
TTEXT:
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[1] UNITED STATES DEPARTMENT OF LABOR
WAGE APPEALS BOARD
In the Matter of
WAGE APPEALS BOARD
The determination of prevailing CASE NO. 68-03
wage rates applicable to the
dredging subcontract for Interstate DATED: October 7, 1968
Highway Project I-95-1(15)84,
Bryan and Chatham Counties, Georgia
J.B. Fraser and Sons, Inc.,
Petitioner
Mr. Richard P. McLaughlin
for the Petitioner
Mr. Frank Hanley,
Mr. Peter Buono, and
Mr. Roland S. Kline, Jr.
for the International Union of
Operating Engineers (IUOE), AFL-CIO,
and IUOE Local 25, Marine Division
Mr. Alvin Bramow
for the Solicitor of Labor
Before: Oscar S. Smith, Chairman,
Clarence D. Barker and
Stuart Rothman, Members
DECISION AND ORDER
I.
This is a proceeding under Order No. 32-61, as amended (29
F.R. 188,761), of the Secretary of Labor, following a petition for
review of the Solicitor of Labor's wage determination in the
above-captioned matter which was filed by J. B. Fraser and Sons,
Inc., on May 17, 1968. A written statement in response to the
petition was filed with the Board [1]
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[2] by the Solicitor on June 13, 1968. An oral proceeding was held on
June 17, 1968, during which interested persons were heard.
Interested persons were afforded an opportunity to file with
the Board statements supplementing their oral presentations and
showing pertinent wage rate information for work being done or
which has been done similar to that which is subject to the
Solicitor's determination in the area involved and showing any
pertinent information as to area practice in classifying the wages
of laborers or mechanics on the basis of the size of the dredges,
employment skills, or other factors. Following the oral proceeding
supplementary statements were filed by the petitioner on August 2,
1968, and on July 9, 1968, on behalf of Local 25 Marine Division,
International Union of Operating Engineers, AFL-CIO, by Mr. Maylin
H. Greaser, President of the American Dredging Company and Chairman
of the southern bargaining group of dredging companies having a
collective bargaining agreement with Local 25. Additional
statements were also filed subsequently, which are discussed
herein.
II.
The petitioner is a dredging contractor located in Fort
Lauderdale, Florida. On April 28, 1968, he submitted a bid for
certain dredging to be performed under subcontract on Georgia
Interstate Highway Project I-95-1(15)84, located in Bryan and
Chatham Counties; i.e., the Savannah area. The petitioner was
awarded a subcontract in the sum of $1,235,605 by the prime
contractor, the Shephard Construction Company, on June 12, 1967.
There were no applicable minimum wages for dredge employees in the
Solicitor's wage determination for the highway project under the
Davis-Bacon [2]
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[3] provisions of the Federal-Aid Highway Act of
1965 codified at 23 U.S.C. 113. /FN1/ We understand from the
statement of the Solicitor's representative at the hearing that the
use of dredging rates had not been contemplated by the State
highway department in its request for a wage determination under
section 5.3(a) of the Department of Labor regulations, Part 5 (29
CFR 5.3(a)).
Through the prime contractor, the petitioner on August 4,
1967, sought to establish with the Georgia State Highway Department
wage rates for dredges under 16 inches on the level of three
Florida dredging projects. The State Highway Department responded
to the prime contractor on August 18, 1967, to the effect that it
considered applicable the wage [3]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
/FN1/ 23 U. S. C. 113 reads as follows:
(a) The Secretary shall take such action as may be
necessary to insure that all laborers and mechanics
employed by contractors or subcontractors on the initial
construction work performed on highway projects on the
Interstate System authorized under section 108(b) of the
Federal-Aid Highway Act of 1956, shall be paid wages at
rates not less than those prevailing on the same type of
work on similar construction in the immediate locality as
determined by the Secretary of Labor In accordance with
the Act of August 30, 1935, known as the Davis-Bacon Act
(40 U.S.C., sec. 276a).
(b) In carrying out the duties of subsection (a) of this
section, the Secretary of Labor shall consult with the
highway department of the State in which a project on the
Interstate System is to be performed. After giving due
regard to the information thus obtained, he shall make a
predetermination of the minimum wages to be paid laborers
and mechanics in accordance with the provisions of
subsection (a) of this section which shall be set out in
each project advertisement for bids and in each bid
proposal form and shall be made a part of the contract
covering the project. Pub. L. 85-767, Aug. 21, 1958, 72
Stat. 895. [3]
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[4] rates for dredging established by the Department of Labor for
Project I-95-1-1(8) Glynn-McIntosh /FN2/ and for the Savannah
harbor work being done for the Corps of Engineers. The disapproval
was based on a practice of establishing dredging rates under two
classifications: (1) dredges 20 inches and over and (2) dredges
under 20 inches. There was no third classification for dredges
under 16 inches, as sought by the petitioner.
Subsequently, on October 27, 1967, the petitioner, through the
prime contractor, provided the State Highway Department with a list
of six projects on which it was said that a classification for
dredges under 16 inches was used. These were the following
projects:
Corps of Engineers, Inv. DACW-17-67-B-0057, April 5, 1967,
Flood Control Project, Florida.
Corps of Engineers, Inv. DACW-17-67-B-0064, April 17, 1967,
Key West Harbor, Florida.
Corps of Engineers, Inv. DACW-17-67-B-0068, May 8, 1967,
Okeechobee Waterway, Florida.
Florida State Road Dept. FAP. No. I-96-1(88)25, Breward.
Florida State Road Dept. FAP. No. I-95-1(75)72, Palm Beach
County.
South Carolina Highway Department FAP H-A-D-13(1), Berkeley
County.
With this list, the State Highway Department wrote to the
Atlanta office of the Bureau of Public Roads indicating a need for
the third classification of dredges under 16 inches, and requesting
a decision from the Solicitor of Labor, to whom the Secretary of
Labor's wage determination ( Davis-Bacon) responsibilities under
the Federal-Aid Highway Act have been delegated. /FN3/ The matter
was subsequently referred to the Solicitor who by letter dated
December 5, 1967, indicated that the wage [4]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
/FN2/ See Section III of this decision.
/FN3/ U.S. Government Organization Manual, 1968-1969, p. 351. [4]
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[5] rates contained in Department of Labor schedule
"Dredge-2-Atlantic" were applicable to the dredging in question.
The "Dredge-2-Atlantic" contained only the two classifications:
dredges 20" and over and dredges under 20". The Solicitor stated
that "these rates have been recognized as prevailing and have been
predetermined for all dredging projects in Georgia." Upon
reconsideration, the Solicitor confirmed his Decision asserting,
among other things, that: "To our knowledge, and to the knowledge
of the Georgia State Highway Department the smaller dredges have
never been used in the past within the State of Georgia."
III
According to the Solicitor's statement, the "Dredging-2-
Atlantic" schedule was compiled following a survey of dredging wage
rates from the southern tip of Maryland to the Florida border
conducted in 1965. The schedule, which reflects the payment of
collectively bargained wage rates by dredging companies and IUOE
Marine Local No. 25, has been used on all Federal dredging projects
with the scope of the surveyed area.
In his statement, the Solicitor pointed specifically to the
use of the "Dredging-2-Atlantic" schedule on another increment of
the Interstate Highway project involving 6.4 miles of dredging
hydraulic embankment and minor grading and drainage on the
Brunswick-Savannah road near Darien, Georgia, and located in Glynn
and McIntosh Counties, Georgia, and less than 25 miles south of the
subject project. The project was begun in May 1966, and the
dredging portion was 36 percent complete as of February 1967.
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The Solicitor's statement assumed that the predetermined rates
for dredging on the project were paid on a dredge corresponding in
size to that used by the petitioner in this case. The accuracy of
the assumption was questioned by the petitioner on the basis of
information obtained by telephone from a regional engineer of the
Georgia Highway Department. By a letter to the Solicitor's
representative dated August 23, 1968, the Board requested the
Solicitor's representative to clarify by appropriate means the wage
payment practices for dredging operations on the project. On
September 9, 1968, the Solicitor's representative wrote to the
Board indicating that it was found that the contractor used two
dredges in the project, both of which were 20" and over. The
response of the Solicitor's representative goes on to say that he
has information concerning the use of a 12" dredge on Interstate
Project I-95-1(17) in Liberty and McIntosh Counties. This project
was mentioned in the oral proceeding, by not relied upon by the
Solicitor in making his decision. The petitioner and other
interested persons were afforded an opportunity to comment on the
Solicitor's letter of September 9, 1968. The petitioner did so by
a letter dated September 25, 1968.
Several other projects were also mentioned in the oral
proceedings by various persons, none of which appear to have been
relied upon by the Solicitor either initially or upon his
reconsideration. [6]
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[7] IV.
The petitioner raises no questions, and expressly avoids any
questions, having to do with "wage rates, as such but rather
[raises questions] with what the Department has determined to be
appropriate classifications of dredge employees." Concerning these
classifications, the petitioner's basic contentions are essentially
(1) that there should be three classifications of employees for
dredging -- 20" and over, 16" through 19", and under 16" because of
economic, technical, and competitive considerations in the dredging
industry and practices generally and in the State of Florida, and
(2) that the record does not support the classification by the
Solicitor of small dredges in the categories of the "Dredging-
2-Atlantic" schedule. The second contention is discussed in the
petitioner's letters of August 2, 1968, and September 25, 1968,
principally in connection with the Solicitor's reliance upon the
highway dredging project in Glynn and McIntosh Counties. /FN4/
The Solicitor and the IUOE rely upon the survey made in 1965
underlying the Solicitor's schedule, and the application of the
schedule in Georgia as supporting the Solicitor's decision. The
wage rates on the schedule are said to reflect those collectively
bargained by the major dredging companies and the IUOE's Marine
Local No. 25. [7]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
/FN4/ The petitioner also attacks generally the 1965 dredge survey
underlying the "Dredging-2-Atlantic'' schedule. But here we are
concerned only with the application of the schedule in the State of
Georgia. The schedule as it applies outside of Georgia is not in
issue, and in any event would be presumed to be valid in the
absence of cogent proof to the contrary. See: Review of Wage
Decision AG-7,983, Jefferson County, Texas, WAB Case No. 67-07,
March 5, 1967). [7]
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[8] As to the first contention, the petitioner cannot separate
the question of wage rates from that of classifications in the
context of what he is trying to show. Any classification of
laborers and mechanics under the Davis-Bacon provisions of the
Federal-Aid Highway Act must relate to locally paid wages. No
classification can rest on circumstances which are divorced from
this relationship, such as any independent economic, technical, or
competitive circumstances. Hence, we reject the contention.
The Davis-Bacon Act itself expressly provides that the wages
to be determined for various classes of laborers and mechanics must
be those locally prevailing for "[*] corresponding classes of
laborers and mechanics [*]" employed on projects of a character
similar to the contract work. [*EMPHASIS IN ORIGINAL*] This
relationship is essential to the achievement of the basic purpose
of the Davis-Bacon Act, which is to protect local wage conditions
and practices. In addition to protecting wage standards, this
permits the local contractors to have a "fair break" in obtaining
Federal construction work. See the remarks of Congressman Bacon
quoted in Legislative History of the Davis-Bacon Act, House
Committee on Education and Labor, 87th Cong., 2d Sess., p. 1
(1961).
With this background and since nothing is shown to the
contrary, the Board infers that the Solicitor's classification
under the Davis-Bacon Act of dredging employees in the State of
Florida has been responsive to local or Florida State-wide wage
conditions or practices. The Board gathers that in Florida there
are, and at the time of the Solicitor's survey there were, dredging
companies paying their laborers and [8]
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[9] mechanics in each of three classifications geared to the size of the
dredge and including a break at 16", and that the wage rates were
graduated according to the size of the dredges. The petitioner also
notes slight variations from the Florida practice in the Solicitor's
determinations for Alabama, Mississippi, Louisiana, Texas, and Arkansas
where only two classifications are used, but the break remains at 16".
Again, this appears to be responsive to local wage conditions or
practices.
Here, we are concerned with wage conditions or practices as to
dredging in the Savannah area, or in the State of Georgia as a
whole in the absence of relevant local evidence. The essential
matter to be decided here has to do with the petitioner's second
contention. It is whether the Solicitor's application of the
"Dredging-2-Atlantic" schedule to small dredges is consistent with
such wage conditions or practices in the Savannah area, or a
necessarily larger area, such as the State as a whole.
We believe that the petitioner has not shown affirmatively
that a condition or practice exists which is contrary to that
asserted as controlling by the Solicitor and the IUOE. As already
indicated, the matter of classification is inseparable from that of
wage rates, and the petitioner has declined to go into the matter
of wage rates. But the petitioner has shown that the factual data
relied upon by the Solicitor is confused enough to justify asking
the Solicitor to re-examine his decision as to what the predominant
conditions or practices are in the described area regarding the
wage rates and classifications of laborers and [9]
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[10] mechanics on small dredges. The Solicitor relied heavily upon the
application of the "Dredging-2-Atlantic" schedule on the Interstate Highway
project located in Glynn and McIntosh Counties, Georgia. It is the
only specific project to which he refers in his written statement
to the Board in support of his decision. But this reliance has
been shown to have been misplaced by his subsequent inquiry
concerning the use of dredges on the project, which disclosed that
two dredges were used, both of which were in the 20" and over
category. Also, the Solicitor indicated in his reconsideration
that to his knowledge "the small dredges have never been used in
the past within the State of Georgia." However, in this proceeding
there were references to at least two such dredges on projects in
Georgia.
We decline at this time to make any assessment of the
pertinence of the Georgia projects involving the use of small
dredges referred to in this proceeding and which were not before
the Board for review or the Solicitor in his decision. As
indicated in our decision in Carters Dam, (WAB Case 65-01, March 1,
1965), we will not ordinarily undertake the hearing of a wage
determination de novo.
The case is remanded to the Solicitor for an early and orderly
development of the facts consistent with the foregoing discussion
of the wage payment and classification questions involved and for
reconsideration of his decision in light of this development.
SO ORDERED.
OSCAR S. SMITH, CHAIRMAN
CLARENCE D. BARKER, MEMBER
STUART ROTHMAN, MEMBER [10]
STUART ROTHMAN, MEMBER [10]
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