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<![CDATA[
CCASE:
INTERSTATE HIGHWAY V. J. B. SONS
DDATE:
19690620
TTEXT:
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[1] UNITED STATES DEPARTMENT OF LABOR
WAGE APPEALS BOARD
In the Matter of
WAGE APPEALS BOARD
The determination of the prevailing wage rates
applicable to the dredging subcontract CASE NO. 69-03
for Interstate Highway Project No.
I-95-1(15)84, Bryan and Chatham Counties,
Georgia
J. B. Fraser and Sons, Inc., DATED: June 20, 1969
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
On April 30, 1969, a petition was filed on behalf of J. B.
Fraser and Sons, Inc., for review of the Solicitor's decision dated
November 27, 1968, based on a development of the facts concerning
the above-captioned wage determination subsequent to the Wage
Appeals Board's Decision in WAB 68-03 (Oct. 7, 1968). The written
record and the briefs of the petitioner and the Solicitor are
before us for consideration.
In our decision WAB 68-03 (Oct. 7, 1968), the case was
remanded to the Solicitor "for an early and orderly development of
the facts" consistent with the discussion of the wage payment and
classification questions discussed therein. [1]
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[2] Subsequently, after conducting a telephone survey, the
Solicitor's Office found that five dredging companies on six
Georgia projects had paid the "Dredge-2-Atlantic" (under 20") rates
or higher on 12" to 16" dredges. On November 27, 1968, the
Solicitor's Office informed the Chief Counsel of the Federal
Highway Administration of its findings and stated that, in the
absence of information to the contrary, its earlier opinion that
the "Dredge-2-Atlantic" rates should be applied to the dredging
involved was confirmed.
The five dredging companies whose in formation was relied upon
by the Solicitor were the following:
Norfolk Dredging Company of Norfolk, Virginia;
Sayler Marine Construction of Savannah, Georgia;
Merritt Dredging Company of Charleston, South Carolina;
Parkhill-Goodloe Dredging Company of Jacksonville, Florida;
Jahncke Service, Inc.
The written record indicates that these companies were among
those whose names were submitted to the Solicitor's Office by IUOE
Local No. 25 Marine Division. Although the record indicates that
other sources of information might have been contacted, the record
does not show the results of any other investigative efforts.
The petitioner's counsel tried to contact the five dredging
companies named by the Solicitor's Office, and succeeded in obtaining
written responses from four of them. These are appended to the [2]
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[3] petition. The Merritt Dredging Company states that
it has performed no contracts in Georgia. The Parkhill-Goodloe
states that it has performed no recent projects in Georgia Sayler
indicated that it has performed two jobs for the Corps of Engineers
in 1968 in the Savannah area, and paid the "Dredge-2-Atlantic"
schedule (under 20") on a 12" dredge. The Norfolk Dredging Company
states that it had one recent contract in Georgia with a dredge
under 16". This was a 14" portable used during 1968 and early 1969
at Jekyll Island, and the wages paid on the dredge were those for
dredges under 20" on the "Dredge-2-Atlantic" schedule.
The petitioner's counsel obtained no in formation from the
Jahncke company. The Solicitor's record indicates that the Jahncke
company used a 12" dredge on Project No. I-95-1(12) in Liberty and
McIntosh Counties in Georgia and paid the rates on the
"Dredge-2-Atlantic" schedule.
The petitioner contends that the two Corps of Engineers' jobs
of Sayler should not be considered because they are not "private"
contracts. By "private" contracts, a reference to non-Federal
contracts seems intended. We reject the contention in applying the
similarity standard for the legislation involved, which does not
distinguish between Federal and non-Federal construction.
However, after considering the whole record we conclude that
the Solicitor's decision is vulnerable on two grounds. [3]
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[4] First, a determination of conformable wage rates should
relate back to the time of the making of the contract. See
Petition of Jack Picoult, WAB 68-09 (Dec. 19, 1968). The
Solicitor's record in this case does not establish this
relationship. The work referred to both by the Solicitor and the
petitioner seems to have been done in 1968 rather than early 1967.
The latter is the critical period since the contract date was April
28, 1967. While perhaps under some circumstances inferences
regarding 1967 wage practices could be drawn from evidence of 1968
wage practices, there has been no showing that such inferences were
drawn or that investigation indicated any such inferences were
necessary.
Second, we conclude that the development of the facts upon
remand should have included more than contacting by telephone
dredging companies whose names were referred by the union. While
it is possible that more than this was done, the record does not
show it.
For these reasons and because there has already been ample
opportunity for developing the facts in this situation,
particularly the opportunities afforded subsequent to the Board's
hearing on June 17, 1968, and again following its decision dated
October 7, 1968, we now set aside the Solicitor's determination and
direct that, for enforcement purposes but without prejudice to future [4]
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[5] findings of prevailing wage rates for dredging in
Georgia, the wages presently paid by the petitioner shall be
considered conformable with the applicable wage determination.
SO ORDERED.
OSCAR S. SMITH, CHAIRMAN
CLARENCE D. BARKER, MEMBER
STUART ROTHMAN, MEMBER
WAGE APPEALS BOARD [5]
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