|
<![CDATA[
CCASE:
HARDAWAY CONSTRUCTION
DDATE:
19720229
TTEXT:
~1
[1] UNITED STATES OF AMERICA
UNITED STATES DEPARTMENT OF LABOR
WAGE APPEALS BOARD
IN THE MATTER OF
WAGE APPEALS BOARD
The Wage Rates Applicable for Case No. 70-04
Power Equipment Operators under
Wage Determination AJ-867 for
Housing Project KY-47-2,
Campbellsville, Taylor County,
Kentucky, Hardaway Construction
Company, Inc., Contractor DATED: February 29, 1972
Hardaway Construction Company, Inc.,
Nashville, Tennessee,
PETITIONER
APPEARANCES:
Charles Hampton White, Esquire,
Nashville, Tennessee
for the Petitioner
Thomas X. Dunn, Esquire,
Washington, D. C.
for the Building and Construction Trades
Department, AFL-CIO
George E. Rivers, Esquire,
Counsel for Contract Wage Standards,
Office of the Solicitor, and
Counsel for the Assistant Administrator,
Wage and Hour Division, U.S. Department
of Labor [1]
~2
[2] Also listed under Appearance for or in
support of the Petitioner:
Mr. L. H. Hardaway, Jr.,
Hardaway Construction Company, Inc.,
Nashville, Tennessee
Also Appearing:
Mr. Will;am J. McSorley,
Building and Construction Trades Department;
Mr. G.E. McCoy,
International Union of Operating Engineers;
Mr. D. D. Danielson,
United Brotherhood of Carpenters;
Mr. Joseph A. Devine,
Department of Housing and Urban Development;
Hal E. Nelson, Esquire,
Office of the Solicitor, U. S. Department of Labor;
Peter F. Martin, Esquire,
Executive Secretary, Wage Appeals Board.
BEFORE: Oscar S. Smith, Chairman, Wage Appeals Board; and Stuart
Rothman and Clarence D. Barker, Members.
DECISION AND ORDER
Although Housing Project KY-47-2 would obviously require their
use, and although the Federal agency here involved (the Department
of Housing and Urban Development or, for convenience, H.U.D.)
apparently requested rates for power equipment operators, [2]
~3
[3] the Wage Determination Division of the Department of Labor failed
to include them in Wage Determination AJ-867 issued October 3, 1969
for the subject housing project. Likewise, the schedule of
classifications and wage rates included in the contract
specifications for this job lacked any for power equipment
operators.
The Petitioner contends that, prior to December 19, 1969 when
the housing contract was awarded it, representatives of Hardaway
met with officials of H.U.D. and of the Municipal Housing
Commission, City of Campbellsville (again, for convenience,
referred to herein as the Local Housing Authority or L.H.A.), in
the Atlanta Office of H.U.D. to discuss the rates for equipment
operators and in particular a schedule of proposed classifications
and wage rates presented by Hardaway based on rates Petitioner
claims were actually paid and prevailing in rural Taylor County.
Petitioner further contends that H.U.D. approved and accepted its
proposed rates, although the record with respect to H.U.D.'s action
in this regard appears otherwise. At any rate, Petitioner was
awarded the contract, incomplete as it was as to operators, and
from December, 1969 to May, 1970, when the operators were utilized
on the job, weekly certified payrolls were duly submitted, showing
payment at the rates for operators which Petitioner claims to have
been preapproved. No [3]
~4
[4] objection was raised as to these rates by the Local Housing
Authority or by H.U.D. during that entire performance period, nor
have any employee complaints been made to date.
Only after completion of the work involving operators, did
H.U.D. and the Local Housing Authority advise the Petitioner that
the rates paid were less than those required and that,
consequently, it owed these men an additional $10,000. These
agencies (H.U.D. and the L.H.A.) in their May, 1970 enforcement
action did not abstract their operators' rates from the applicable
Wage Determination incorporated into the contract; nor did they
obtain them by following the classification and reclassification
procedures of Regulations, Part 5. Rather, they simply took a
schedule of Statewide-bargained rates from another Wage
Determination, AJ-8810 issued months later for a project which may
never have been awarded, and told Hardaway that these AJ-8810 rates
were retroactively applicable to its contract.
When the Petitioner appealed the above action, the matter was
referred to the Wage Determination Division for review. For some
reason, the then Administrator concluded that it was too late to
reconstruct the wage patterns for Taylor County and, instead,
concurred in the action taken by the L.H.A. and by the Atlanta
office of H.U.D. [4]
~5
[5] On review of the entire record in this matter, including the
oral and written testimony presented at the hearing held on October
7, 1971 and the data submitted within the 30-day period following
the hearing, the Board finds as follows:
In view of the fact that the Department of Labor occasioned
this enforcement problem by failing to include operators in its
Wage Determination; and also in view of the considerable confusion
following thereafter, and especially the failure of the Federal
agency as well as the Local Housing Authority involved to follow
the classification and reclassification procedures of the
regulations and of the contract provisions; the Wage Appeals Board
concludes that it is incumbent on the Administrator, acting under
both his wage predetermination and enforcement responsibilities, to
make some showing that the Petitioner in fact was not paying the
prevailing rates for operators in Taylor County at the time this
contract was awarded. If unable to do so, under the circumstances
here involved, the Board concludes that the matter should be
disposed of by the Administrator taking a non-enforcement position
in this case in accordance with procedures long recognized in cases
of this type where the evidence of record is insufficient to
support a finding of contract labor standards irregularities. [5]
~6
[6] ORDER:
Unless the Administrator within a period not to exceed 30 days
makes some showing that Petitioner Hardaway did not pay the
operators on the subject job the actual prevailing rates for Taylor
County, he shall dispose of this case by taking a non-enforcement
position and by so advising the Department of Housing and Urban
Development.
SO ORDERED
Oscar S. Smith, Chairman
Stuart Rothman, Member
Clarence D. Barker, Member [6]
]]>
|
