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<![CDATA[
CCASE:
BREZINA CONSTRUCTION COMPANY
DDATE:
19691229
TTEXT:
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[1] UNITED STATES DEPARTMENT OF LABOR
WAGE APPEALS BOARD
In the Matter of
WAB
The determination of classifications Case No. 68-10
and wage rates applicable to certain
construction work under the Davis-Bacon Dated: December 29, 1969
provisions of the United States Housing
Act by Brezina Construction Company and
Bel Mar Builders, Inc., on Projects
ND-6-1 and 6-2, Belcourt, North Dakota
Brezina Construction Company, Inc.,
Bel Mar Builders, Inc.,
Petitioners
Appearances:
William B. Barton,
for the petitioners
George E. Rivers,
for the Solicitor
Thomas X. Dunn,
for the Building and Construction Trades
Department, AFL-CIO
Mr. D. D. Danielson,
for the United Brotherhood of Carpenters
and Joiners of America, AFL-CIO
Before: Oscar S. Smith, Chairman, Clarence D. Barker and Stuart
Rothman, Members [1]
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[2] DECISION AND ORDER
I
This matter is before the Wage Appeals Board on petitions by
Brezina Construction Company, Inc., and Bel Mar Builders, Inc., for
review of a decision made by the Wage and Hour Administrator in an
enforcement proceeding under the Davis-Bacon provisions of the U.S.
Housing Act of 1937 (42 U.S.C. 1416). The Wage Appeals Board has
jurisdiction under section 7.1 of Title 29, Code of Federal
Regulations.
Brezina Construction Company, Inc. (hereafter referred to as
Brezina), and Bel Mar Builders, Inc. (hereafter referred to as Bel
Mar), were awarded separate contracts in 1965 and 1966,
respectively, for the construction of various housing units on an
Indian Reservation at Belcourt, North Dakota. More specifically,
the contracts called for the construction of one and two story wood
frame single and duplex family units. The roofs or sides of the
buildings extend to the ground; and the windows are placed in the
ends of the buildings. The roofs or sides are sloped, the slope
beginning near at or near the ground, going to a height of about 16
feet on some of the buildings and to a height of about 8 feet on
others where a much less pronounced slope begins which extends to
the crest of the building. This area of the buildings was in all
cases covered with wooden shingles from at or near the ground to
the crest of the building. [2]
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[3] The applicable wage determinations included a rate for
"Roofers" of $2.70 per hour; and rates for "Carpenters" of $3.45
(Brezina contract) and $3.55 (Bel Mar contract).
The construction contracts were awarded by the local Turtle
Mountain Housing Authority. The administering Federal agency is
the Department of Housing and Urban Development (hereafter referred
to as HUD). For some twenty months, work was performed by both
petitioners and weekly payrolls were submitted showing that workers
classified and paid as roofers applied all exterior shingling as
required by the specification. At about the time of completion of
the work under these contracts there was an investigation made by
a Department of Labor representative in October or early November
of 1966. A later investigation was made by the Compliance Division
of HUD. Petitioners were notified that the application of all
wooden shingles to the housing units should have been paid for at
not less than the higher carpenters' rates.
The Chicago office of HUD held a "hearing" in the matter on
March 15, 1968, which consisted of the opportunity for petitioners
to submit any written evidence they might wish to present.
Petitioners submitted written evidence of "area practice," but they
were not informed as to the outcome of the Chicago "hearing" by
HUD. Instead, the matter was transmitted by the Chicago office to
the Washington office of HUD. Instead of a final decision by the
agency head in Washington, the "record" was transmitted by HUD to
Wage and Hour and Public Contracts Division, Department of Labor,
which now handles the coordination of enforcement function of the
Secretary of Labor under the Davis-Bacon and related Acts, as
provided in Reorganization Plan 14 of 1950. [3]
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[4] Following his review of the matter, the Wage and Hour
Administrator, by letter to HUD dated September 10, 1968, advised
that the case be disposed of by applying the $2.70 roofers' minimum
rate to the application of the wooden shingles to the "roof," and
the higher carpenters minimum rates to the same application of
shingles to the "sides." HUD failed to work out any final
disposition of the matter on this basis. Petitioner appealed to
the Wage Appeals Board by petition received October 31, 1968. A
hearing was held on December 12, 1968, at which time all interested
parties were heard. However, since the Administrator believed that
certain relevant material was not included in the "record," he
asked that the case be remanded to him for the purpose of
considering the petitioners' request for relief in the light of the
available evidence, including that evidence developed before the
administering agency (HUD). On January 17, 1969, the Board acceded
to this request and remanded this case to the Administrator for
such purpose. On August 15, 1969, the Administrator returned the
record to the Board, concluding that he found no basis to change
his September 10, 1968, recommendation to HUD for disposition of
this case.
To assure that all interested parties had an opportunity to
complete their presentations in this matter and to assure
procedural fairness in this case which has been allowed to remain
unresolved far too long, the Board scheduled and held a final
hearing on December 6, 1969, after appropriate notice to all
interested parties. Also, at the request of the Board, Counsel for
the petitioners submitted subsequently further information
concerning the required use on these projects of local Indian
labor. [4]
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[5] II
After consideration of the presentations of the interested
parties and after trenchant searching for the real issue presented,
the Board concludes it to be -- in a Davis-Bacon Act enforcement
proceeding, can the Wage and Hour Administrator or other
enforcement officer conclude that the work of applying exterior
shingling to one part of the building be paid for at a wage rate
different from the wage rate paid for doing the same work on
another exterior part of the same building? The Administrator has
concluded that the wages to be paid for shingling the part of the
buildings he considers to be sides should be paid for at the rate
of not less than $3.45 ($3.55) an hour and the rate to be paid for
shingling what he considers to be the roofs should be paid for at
the rate of not less than $2.70 an hour.
The particular type of construction involved is little or no
different from any other frame housing covered by cedar or other
wooden shingles except that the roof has a little less overhang and
the angle of the side wall is a little obtuse. This is illustrated
by a cut of the buildings, which was submitted as "Exhibit A" by
the petitioners that is [NOT] appended to this decision.
It is fundamental in the administration of the Davis-Bacon Act
that when the issue is whether one of two minimum wage rates
applies to the same work it is necessary to look carefully at what
the work is. Generally, a conclusion must be reached that identical [5]
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[6] items of work belong in one wage rate classification, not two;
i.e., the same work does not belong in two wage rate classifica-
tions. /FN1/
The petitioner argues that what you see here when you look at
a drawing of the building is a dwelling with a mansard roof, but
the roof starts at the foundation level, and therefore the
pertinent Wage Determination classification should be the so-called
"roofers" classification. The Administrator takes the position
that each structure has sides and a roof, and that therefore the
exterior covering cannot be characterized as all roof or all sides.
When this matter came to the Administrator he sought a
pseudo-Solomonic solution of splitting the house down the middle.
He concluded, as the record shows, that for the purpose of the
disposition of this case, that the appropriate minimum wage rate
for the shingling up to the change in pitch of the buildings would
be $3.45 and $3.55 an hour, because a look at a picture of the
buildings suggested that the exterior had the appearance of a wall
up to that point. With respect to the application of shingles
above the change in the pitch, that portion of the exterior looked
more like a roof. But the Wage Appeals Board does not think the
aforementioned critical issue of this case can be disposed of
simply on the basis of the appearance [6]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
/FN1/ There are situations, of course, where a contract
specification may call for certain incidentals to be performed by
specialty contractors under a particular division of the
specifications. That is something else again and the Board need
not get into that problem here. Further, there may be peculiar
area practice considerations requiring a different conclusion,
which are not pertinent here. [6]
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[7] of the building. We must look to the work of the laborer and
mechanics applying the shingling.
Petitioners say that if the Administrator proposed a
"settlement" on the basis that the $2.70 grade was the right
minimum rate for applying shingles to the roof only, no one
approached them on the disposing of this matter on a settlement
basis. Once the Administrator decided that part of the same work
can be done at $2.70 an hour, he could not, for the reasons stated
elsewhere in this decision, apply a different rate for the same
work.
The Administrator had three logical choices that he could have
made concerning the application of the wooden shingles: (1) to
apply the carpenters rates of $3.45 and $3.55 an hour; (2) the
roofers rate of $2.70 an hour; or (3) both rates, as he did. /FN2/
We believe that the selected third choice is not consonant
with either the Davis-Bacon Act requirements except under
circumstances footnoted in this decision. Nor is it consonant with
a common sense approach to the facts presented.
The Wage Appeals Board agrees with the intervening
International Brotherhood of Carpenters that, generally, its
position is much more persuasive that the application of wood
shingles is a carpenter's [7]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
/FN2/ It is noted parenthetically that when the Administrator
requested the case be returned to him on a remand, there the case
reposed for a conclusive decision by the Administrator, not by us.
What the Administrator tells us in effect is that after looking it
over again he had not changed his mind about what to do with it,
and sends it back to us. There is no specific procedure under the
Wage Appeals Board's rules and regulations for a case to come back
to us in that way. However, in any event, the matter is properly
before us at this time because of the petitions of the two
companies to the Board to take the matter up again. [7]
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[8] work and would come within a carpentry classification. This is
particularly emphasized in this case since the application of the
shingles was a part of the carpentry division of the
specifications. There was no roofer's division at all. We also
agree with the Brotherhood that as between "roofers" on a wage
classification supplied by a tile and composition asphalt roofing
union, and a wage classification for carpenters, the application of
the carpenters rate for wood shingles would be normally expected to
apply. However, while agreeing in principle with the
representatives of the United Brotherhood of Carpenters, we believe
under the surrounding facts and circumstances of this case the
terms "roofers" and "roofers' rate" may reasonably have been
considered as synonymous with a shingler at a lower shingler's
rate. Albeit as inaccurate as it was, it was nevertheless in the
wage determination, and there was a lack of any timely guidance
limiting its use. The mistake was in having such a rate in the
specifications. /FN3/
To sum up, our conclusions may be stated briefly as follows:
1. Absent certain specialty trade situations and specific area
practice considerations, the same classification and minimum wage
rate therefor must be applied to the performance of identical work
by individual laborers or mechanics. [8]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
/FN3/ The predetermined rate for the classification for roofers
was based upon a rate in a negotiated labor agreement in 1959 by a
slate and composition roofing union in Minot, North Dakota, a
hundred miles away, which had gone out of existence long before
bids were let on these contracts. Inclusion of this roofer's rate
in this bid document made no sense at all and might well have been
found to violate the Labor Department's own regulations concerning
wage predeterminations published in 29 CFR, Part 1. [8]
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[9] 2. The wage determinations involved may be reasonably read
as having treated synonymously the roofer's rate and a rate for
shingling.
3. Although the application of a roofer's rate may be
contrary to some general industry practices, the roofer's rate was
in the wage determinations, even though the rate was erroneously
determined to be locally prevailing. It is now too late to fault
the contractors for paying it, particularly since the Administrator
himself has considered the rate to be applicable to work which is
identical to that in issue.
ORDER
This case is remanded to the Administrator with directions to
apply the $2.70 rate to the application of all exterior shingle
work.
SO ORDERED.
OSCAR S. SMITH, CHAIRMAN
CLARENCE D. BARKER, MEMBER
STUART ROTHMAN, MEMBER
WAGE APPEALS BOARD [9]
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