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CCASE:
Fort Worth and Dallas Building
DDATE:
19680826
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[1] UNITED STATES DEPARTMENT OF LABOR
WAGE APPEALS BOARD
In the Matter of
FORT WORTH-DALLAS REGIONAL
AIRPORT
WAGE APPEALS BOARD
Fort Worth-Dallas Regional CASE NO. 68-05
Airport Wage Rate Determi-
nation Dated: August 26, 1968
Fort Worth and Dallas Building and Trades Council,
Petitioner
Mr. Tom Upchurch, Jr.
for the Petitioner;
Mr. Robert W. Norris
for the Associated General Contractors;
Mr. S. G. Johntroe, Jr.
for the City of Fort Worth, Texas;
Mr. N. Alex Bickley
for the City of Dallas
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, o[f]
the Secretary of Labor, following a petition filed by the Fort
Worth and Dallas Building and Trades Council on June 26, 1968. The
petition is for review of the Solicitor of Labor's decision dated
May 21, 1968 to the effect that the prevailing wages for the site
preparation, [1]
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[2] clearing, grading, and drainage work for the
first phase of the Dallas-Fort Worth Regional Airport under FAA
Project No. 9-41-209-02 are the so-called heavy wage rates rather
than the so-called building and construction wage rates. The City
of Dallas, the City of Fort Worth, and the Associated General
Contractors, Texas Highway-Heavy Branch, filed a statement in reply
to the petition on July 23, 1968.
On August 13, 1968, the full Board heard oral argument by
petitioner, the Cities of Dallas and Fort Worth, the Texas Highway-
Heavy Branch of the Associated General Contractors, and the
International Brotherhood of Carpenters.
II
The contract for the work involved concerns the rough grading
and installation of drainage features in an area encompassing 4,500
acres where four north-south runways will ultimately be installed.
The length of the runways is estimated to be about 14,000 feet.
About 30 million cubic yards of dirt would have to be removed for
preparation of the runways. The runways themselves will be about
6,000 yards apart and a terminal complex, not yet finally designed,
will be built later between the runways. The paving contracts for
the runways and taxiways will not be awarded until the early or
middle part of 1970. Also, the terminal complex construction would
not begin until at least 1970. There will also subsequently be
extensive roadway construction. The planned airport will
encompass [2]
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[3] 17,000 to 20,000 acres of land. The target date for opening the
airport is 1972.
III
The grounds for the petition as stated by the petitioner are
broad. They are that the Solicitor's decision is based upon:
(1) evidence of projects not of a character similar;
(2) evidence of some projects beyond the one-year period; and
disregard of evidence of other projects beyond the one-year period;
and
(3) the Solicitor, in making his decision, went outside the
record made before a trial examiner.
Additional minor contentions are also made.
Reduced to its essentials, we understand the position of the
petitioner to be that the Solicitor was in error in affirming the
hearing examiner's determination that the Love Field Airport in
Dallas, Texas, and the Great Southwest International Airport (Amon-
Carter) are projects similar to that being undertaken here and that
the Solicitor failed to give adequate weight to asserted wage
payment practices on a number of commercial, industrial, and school
projects in the area. In so contending, the petitioner describes
the construction, and asserts that the following projects were
similar "overall planned undertakings" reflecting an
"interrelationship of buildings and incidental site work": (1)
Tarrant Junior College [3]
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[4] South; (2) Fort Worth Convention Center; (3) General Dynamics; (4)
American Airlines Stewardess School; (5) University of Texas at Arlington;
(6) American Airlines Flight Simulator and Power Plant; (7) Bell
Helicopter-Saginaw Project; (8) Turnpike Stadium; (9) L.T.V.; (10)
Mountain Creek Power Plant; and (11) Maryland Manufacturing Plant.
In contrast, the petitioner seeks to distinguish the Love
Airport because construction there has been piecemeal, and an
expansion of an existing facility, which was begun during World War
I. It is said that the construction has been intermittent despite
the existence of a "master plan" for the development of the airport
adopted in 1946. The Amon-Carter Airport is also said to be
distinguishable because it is not an "overall planned undertaking."
Thus, the petitioner relies on a logical approach: -- the
airport in question is an "overall planned undertaking" involving
building and site work; the industrial and school projects are
"overall planned undertakings" involving building and site work;
and therefore the airport is similar to the industrial and school
projects and not similar to other airports. The applicable
statutory and [4]
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[5] regulatory standards which are set out below,
/FN1/ are simpler, and require only a comparison of similar
projects to the contract work for wage determination purposes. If
overall planning or contract arrangements may be pertinent in a
case in determining appropriate [5]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
/FN1/ The Davis-Bacon provision of the Federal Airport Act (49
U.S.C. [sec] 1114(b)) reads as follows:
(b) All contracts, in excess of $2,000 for work on
projects approved under this chapter which involve labor
shall contain provisions establishing minimum rates of
wages, to be predetermined by the Secretary of Labor, in
accordance with the Davis-Bacon Act, as amended, which
contractors shall pay to skilled and unskilled labor, and
such minimum rates shall be stated in the invitation for
bids and shall be included in proposals or bids for the
work.
The Davis-Bacon Act itself provides pertinently, for the contract
specifications 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 [*] [*(emphasis supplied)*] in the
city, town, village, or other civil subdivision of the
State in which the work is to be performed . . .
Regulations promulgated by the Department for the administration
of the Act, relating to determinations of prevailing wage rates
under the Act (29 CFR Part 1) provide:
Section 1.2(b). The term "area" in determining wage
rates under the Davis-Bacon Act and the prevailing wage
provisions of the other statutes listed in [sec] 1.1
shall mean [*] the city, town, village, or other civil
subdivision of the State in which the work is to be
performed.[*] [*(emphasis supplied)*]
Section 1.6(a). In making a wage rate determination
projects completed more than one year prior to the date
of request for the determination may, but need not, be
considered.
(b). If there has been no similar construction within
the area in the past year, wage rates paid on the nearest
similar construction may be considered. [5]
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[6] wage determinations, this is not such a situation.
As the Solicitor indicates in his decision, the simple and
narrow issue here is whether the wages contained in the applicable
decision for the work involved are the prevailing rates for the
proper classifications of laborers and mechanics, taking into
consideration "projects of a character similar to the contract
work" as required by the Davis-Bacon Act as applied in the Federal
Airport Act. The Wage Appeals Board is called upon to decide
whether the Solicitor erred in concluding, on the basis of an
extensive record and recommendations of a trial examiner, that the
prevailing wages for the work involved are the so-called
"heavy-highway" wage rates and not the so-called "building and
construction" wage rages. We conclude that the Solicitor of Labor
did not err.
We believe that the project involved, whether considered to be
composed only of the work required for the first phase of the
airport development or to be for all that is necessary for the
accomplishment of airport development with respect to this airport
would be controlled by wage payment practices at Love Field,
Amon-Carter, and lesser airports. Thus, we agree with the
conclusions of the Solicitor that whether the present project
undertaking of site preparation, clearing, grading and drainage
work for the first phase is considered as part of an "overall
planned undertaking" or [6]
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[7] whether it is not so considered, makes no difference in deciding that
under Davis-Bacon Act principles the prevailing wage rates for the project
work in question is as the Solicitor determined.
The record concerning recent wage payment practices at the
airports amply supports the finding of the Solicitor as to the
first phase that the so-called heavy-highway rates prevail for site
preparation, grading, drainage, and clearing. This Board has had
previous occasion to pass upon an attempt to distinguish otherwise
similar projects on the grounds that a project would constitute an
alteration or addition to a pre-existing facility rather than a new
project. It has rejected this assertion. See WAB Case No. 66-04,
Bell Helicopter Facilities at Saginaw, Tarrant County, Texas.
The Board does not have before it any issues as to the levels
of any particular wage rates. This is something which the
Solicitor's decision leaves to subsequent administrative action.
Rulings on the remaining contentions of the petitioner are not
necessary for our decision. But the petitioner raises one
procedural point which warrants discussion. He asserts that the
Solicitor erred in basing his decision partly upon a
"quasi-executive interpretation" of the Federal Airport Act, made
by the FAA, of which counsel for the Union was not afforded an
opportunity to examine or challenge. He refers to page 4 of the
Solicitor's decision wherein the Solicitor indicates that an
inquiry was sent to the FAA which prompted a [7]
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[8] reply that the Federal Airport Act, as amended, excluded from Federal
aid the construction of all buildings, except fire, rescue, and maintenance
buildings, including construction related to safety, such as
control towers, radar or other safety installations. This is a
point of law and not of fact which is not essential to our or the
Solicitor's decision. It does not detract from the fairness of the
proceeding before the Solicitor, and it was not shown to be
prejudicial. It should be noted that the same point of FAA law was
made by the cities in their presentation to the hearing examiner.
The Solicitor would not appear to be in a position to comment
authoritatively upon provisions of the Federal Airport Act dealing
exclusively with grant administration (not labor standards
administration) without such consultation. Any difference of views
as to the statutory construction involved on exclusively grant
administration (not labor standards administration) should be
directed to the FAA and not the Solicitor.
It should be emphasized that our decision reviewing the
Solicitor's decision in issue, is limited to the first phase of the
development of this airport. It does not prejudice any subsequent
wage determinations for the remaining phases of work.
At the oral hearing, reference was made to prior decisions of
the Wage Appeals Board, Mattapony Towers Apartments, Case No. 64-02
(June 29, 1965), and Will Rogers World Airport, WAB 65-04 (March 22, [8]
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[9] 1966). Comment on their pertinence may therefore be useful.
The parties herein, the Texas Highway-Heavy Branch of the AGC,
the cities involved, and the building trades representative, all
knowledgeable in the field of Davis-Bacon wage predeterminations,
will recognize that in the application of the statutory provisions
and regulatory standards much depends upon the facts and
circumstances of the particular construction and development
project involved. The principles of the statute and the
regulations must be administered in a fair way to reach a
responsible, reasonable, and practical result as applied to the
facts of the project at hand. In this connection we believe that
our affirmance of the Solicitor's decision herein bears out what we
said in the two cases referred to in the oral hearing. In
Mattapony Towers Apartments, WAB Case No. 64-02 (June 29, 1965),
the Board, applying a close eye to the engineering and
developmental problems of two types of multi-family six or seven
story apartments, concluded that the apartment buildings retained
more of the characteristics of normal high-rise construction than
of garden-type construction. Looking at the engineering and
developmental problems of the construction in question in the
subject case, we believe the Solicitor was fully justified in
concluding that the construction was of a heavy and highway type
and not general building construction. [9]
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[10] In Will Rogers World Airport, WAB Case 65-04 (March 22,
1966), the Board left open the question where and when a line is to
be drawn between the application of heavy and/or highway wage rates
and building rates in connection with terminal aprons and similar
appurtenances in proximity to or adjacent to terminal building
construction in airport developments. The question was not ripe
for determination in that particular case, nor did the Board
conclude that the matter could be resolved on other than a
case-by-case consideration. The more narrow and limited question
of certain kinds of work adjacent to the buildings or outside of
the property line of buildings is a different kind of question from
the issue presented in this case.
The decision of the Solicitor is affirmed.
SO ORDERED.
OSCAR S. SMITH, CHAIRMAN
CLARENCE D. BARKER, MEMBER
STUART ROTHMAN, MEMBER
WAGE APPEALS BOARD [10]
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