|
<![CDATA[
CCASE:
STEVENSON APT. V. George Enterprises
DDATE:
19710114
TTEXT:
~1
[1] UNITED STATES OF AMERICA
UNITED STATES DEPARTMENT OF LABOR
WAGE APPEALS BOARD
In the Matter of
WAGE APPEALS BOARD
The Determination of the Prevailing
Wage Rates Applicable to Construction Case No. 70-07
of the Stevenson Apartments, Section
III, a Ten-Story Apartment, including DATED: January 14, 1971
paving of related parking areas, Prince
Georges County, MD
George H. Hurwitz,
George H. Hurwitz Enterprises
Falls Church, Virginia,
PETITIONERS
APPEARANCES:
Richard M. Millman, Esquire
for George H. Hurwitz and
George H. Hurwitz Enterprises, Petitioners.
Messrs. Thomas X. Dunn and
William J. McSorley
for The Building & Construction Trades
Department, AFL-CIO.
Mr. Joseph F. Curtice
for the Washington, D.C. Building Trades Council;
Mr. Charles E. Hutsler
for the Ironworkers International Union;
Mr. Faust Moreschi
for the Laborers International Union;
Mr. D. D. Danielson
for the United Brotherhood of Carpenters;
Mr. O. L. Kerth
for the International Brotherhood of
Electrical Workers; [1]
~2
[2] Mr. T. Moseley
for I.B.E.W. Local No. 26 and for
the Washington, D.C. Building Trades Council;
Mr. J. Walsh Richards, Jr.,
for the F. W. Berens Company.
Mr. George E. Rivers for the Director OGCWS
BEFORE: Oscar S. Smith, Chairman, Wage Appeals Board; Stuart
Rothman and Clarence D. Barker, Members.
DECISION AND ORDER
On December 18, 1970, counsel for the above Petitioners
petitioned the Wage Appeals Board to review Wage Determination No.
AK-1406, issued August 27, 1970, by the currently-designated office
of the Director, Office of Government Contracts Wage Standards,
Workplace Standards Administration, U. S. Department of Labor, to
the Federal Housing Administration (FHA), Department of Housing and
Urban Development. This wage determination was issued pursuant to
the Davis-Bacon Act provisions of Section 212(a) of the National
Housing Act (12 U.S.C. 1715c) for FHA Project No. 000-35044-PM,
involving construction of the Stevenson Apartments, Section III, in
Prince Georges County, Maryland, a ten-story apartment building for
which petitioners, as proposed owners-builders, had previously
sought FHA assistance.
Although AK-1406 expired by its own terms on December 24,
1970, the Federal agency here involved, namely, the Federal Housing
Administration, had requested and there had been issued to the
agency a new Wage Determination for the subject project, namely,
No. AK-9035, dated December 8, 1970, and bearing a new expiration
date of April 6, 1971.
The record indicates that the original wage determination
(AK-1406) reflected the general building construction schedule
found prevailing for [2]
~3
[3] the Metropolitan Washington area, including Prince Georges County,
as distinguished from the lower schedule recognized as prevailing in
the same general area for home building or walk-up, garden-type
apartment construction work. The new wage determination (AK-9035) was
predetermined along the same lines, but contains a number of higher
hourly rates than in the August, 1970 wage decision because of increases
found to be now prevailing on general building construction work in
the subject area.
In a September 10, 1970, letter addressed to the
Administrator, Workplace Standards Administration, Petitioner
protested the application of the wage rates in AK-1406 to his
proposed high-rise apartment project, contending that they
appreciably exceeded the rates paid in the area on the construction
of apartment buildings, whether garden-type or high-rise. He cited
two high-rise apartment projects recently completed by him on the
same tract of land in the Bladensburg area of Prince Georges
County, on which jobs he paid rates substantially below those
recognized by the Department of Labor for general building or
"commercial building" work. With his letter of protest, Petitioner
enclosed certain wage rate data allegedly supporting his
contentions that the Department's rates far exceeded those being
paid for residential work in the area, including high-rise
apartments.
On October 28, 1970, the then-designated Associate
Administrator, Division of Wage Determinations, Workplace Standards
Administration, responded to Petitioner's September 10th protest.
He advised Mr. Hurwitz that the Division had reviewed the wage rate
payment information he had submitted from other high-rise apartment
projects in the county, and that consideration had also been given
to Mr. Hurwitz' position that only wage rate data from housing
developments undertaken in the industry as this project is [3]
~4
[4] undertaken and financed, should be utilized in establishing rates
for the subject project. Mr. Hurwitz was advised that, on the
basis of the information furnished, they could not change the wage
rates as requested, and the rates in AK-1406 were confirmed. In
the event Mr. Hurwitz wished to pursue the matter further, he was
advised that he was free to make formal appeal to the Wage Appeals
Board pursuant to the appeal procedures outlined in Regulations,
Part 7, a copy of which was furnished Mr. Hurwitz. It was from
this decision that this appeal was taken to the Board and on which
a hearing was held on this date.
At the start of the January 14, 1971 hearing, several
interested persons submitted statements and data for inclusion in
the record.
During the hearing, as all interested parties were afforded
opportunity to also make oral statements and arguments, there was
some question raised as to whether the Petitioner was attacking the
now-expired wage determination (AK-1406), or the supersedeas wage
decision currently applicable to the project in question (AK-9035).
The Board noted, in this regard, that there is a current wage
determination which, although containing an appreciable number of
higher wage rates than were in the original one, basically reflects
the procedures followed in making the initial wage decision and in
effect affords the Petitioner a similar basis for his protest.
With this understanding, the Board proceeded to hear the case.
The Director, Office of Government Contracts Wage Standards,
Workplace Standards Administration, applied in this case a
principle which we enunciated under the facts and circumstances of
Wage Appeals Board Case No. 64-02, dated June 29, 1965, involving
wage determinations applicable to a proposed high-rise project,
Project No. 000-00124, Mattapony Towers [4]
~5
[5] Apartments, also scheduled for Bladensburg, Prince Georges County,
Maryland. There we noted that, in the Metropolitan Washington area, two
schedules of rates were applied to multi-family residential construction by
the construction industry. The lower of the two sets of rates
applied to garden-type multi-family residential construction; the
higher schedule applied to all other types of apartment
construction. We further noted that the higher schedule of rates
were the "general building rates" applicable to "commercial" as
well as certain kinds of apartment construction, and that the Home
Builders Association of Metropolitan Washington, Inc., representing
home builders active in apartment construction, recognized and
published two separate schedules of wages for the two different
kinds of construction.
It was further stated in the Board's Mattapony decision that,
normally, high-rise apartment construction is considered general
building construction, and takes the higher wage rates; whereas
garden-type construction normally takes the lower wage rates; and
that the wage differentials, pragmatically viewed, reflected basic
acceptance among residential builders that differences in
construction development and practice justified the differential.
The Board concluded, on the basis of the record before it in the
Mattapony case, that the Petitioner had not developed necessary
information that the industry accepted the idea that a 6 or 7-story
apartment project (such as was there involved) could be taken out
of the "high-rise" or "general building construction" category and
placed with garden-type construction for wage rate purposes.
Without support that the industry so regarded the project, the
Solicitor (whose office, in 1965, was responsible for the issuance
of wage determinations) could not be faulted for not doing so, in
the Board's judgment. [5]
~6
[6] At the hearing January 14, 1971, a canvass was made of the
wage data garnered by the Director from a report made to him by the
Petitioner, and, apparently, from other sources, including a mail
survey. The explanation and statements of the Petitioner
concerning the scope of his own report, and other explanations and
critiques made by interested persons at the hearing leads the Board
to conclude that the wage data information lacked necessary
comprehensiveness to depict the factual situation in the industry
at this time. With the Petitioner's wage data justification before
him, the Director did not err in his determination not to excise
high-rise apartment construction from the category of general
building construction for wage rate purposes in the area in
question. In so determining, he followed the basic principle
affirmed by the Board in the Mattapony decision.
However, since the Mattapony decision dates back to 1965, the
Board further believes that under the circumstances here involved
the Director would best fulfil his wage determination
responsibilities and at the same time best serve the needs of all
interested parties, the industry, and the Department of Labor by
testing the wage payment practices with respect to high-rise
residential construction to determine whether the building and
construction industry has accepted the exclusion of high-rise
residential construction from the general building construction
category for wage rate purposes. The Director should make such
study as he deems adequate and necessary to satisfy himself that
there has or has not been a change within the Metropolitan
Washington construction industry since 1965 for him to question the
Mattapony principle (as applied to the facts in the Mattapony case)
that, applying Davis-Bacon criteria for determining appropriate wage [6]
~7
[7] determinations, the construction industry has or has
not excluded high-rise residential construction from general
building construction. We leave to the Director the nature and
methods of such survey and the degree of thoroughness required to
satisfy himself that the original determinations made herein were
or were not correctly made.
The case is remanded to the Director for the purposes
discussed in the last paragraph of this decision.
SO ORDERED
Oscar S. Smith, Chairman
Stuart Rothman, Member
Clarence D. Barker, Member
WAGE APPEALS BOARD [7]
]]>
|
