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<![CDATA[
CCASE:
VIRGINIA SEGMENT C-7, METRO
DDATE:
19711207
TTEXT:
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[1] UNITED STATES OF AMERICA
UNITED STATES DEPARTMENT OF LABOR
WAGE APPEALS BOARD
IN THE MATTER OF
WAGE APPEALS BOARD
Wage Determination AM-9,208, Dated
December 13, 1971 and the Wage Rates Case No. 71-04
Applicable to the Construction of
Virginia Segment C-7 (Huntington Dated: December 7, 1971
Route) of the Metropolitan Rapid
Rail Transit System in Arlington
County, Virginia.
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APPEARANCES: [36 SEPARATE APPEARANCES OMITTED THROUGH PAGE 4]
Before: Oscar S. Smith, Chairman,
Wage Appeals Board; and
Stuart Rothman and
Clarence D. Barker, Members.
DECISION AND ORDER
On October 8, 1971, the Wage Determinations Division of the
Department of Labor's Workplace Standards Administration issued to
the Washington Metropolitan Area Transit Authority Wage Decision
AM-5,434, setting forth the classifications and corresponding wage
rates then found applicable to a proposed contract for the
construction of Segment C-7 of the Metropolitan Rapid Rail Transit
System in Arlington County, Virginia.
In the Invitation for Bid, the agency lists this "Description
of Work" involved in C-7:
The work involves 3,165 LF of cut-&-cover construction of
reinforced concrete box line and Pentagon City Station
section and 2,536 LF of single track earth tunnel; 200 LF
of single box cut-&-cover crossover structure, 2 vent
structures, 2 fan shafts; above ground track power
substation and chilled water plant; maintenance of
traffic and utilities; underpinning of a highway bridge,
street work, dewatering and support of excavation. [4]
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[5] Segment C-7, estimated to cost $26,000,000, will run from the
Pentagon under Shirley Highway (I-95), along Hayes Street to South
18th Street, then along South 18th Street to Crystal City office
and apartment complex on Jefferson Davis Highway (U.S. Route 1), --
all in Arlington County.
On November 9, 1971, the Petitioner Federal Highway
Administrator sought a hearing before this Board on an expedited
basis because of the then-proposed November 24th date for bid
opening on the subject project. He had earlier sought review and
revision of Wage Decision AM-5,434 by the Assistant Administrator
of the Department's Wage and Hour Division, now the administrative
officer charged with responsibility for wage determinations under
the Davis-Bacon Act and related labor standards statutes. The
basis for his request was his belief that the subject wage decision
did not correctly reflect the rates prevailing for projects of a
character similar in Arlington County, and his further belief that,
if allowed to stand the challenged wage decision, with rates
considered considerably in excess of those prevailing in the
County, would seriously affect future construction in Arlington
County, including highway projects involving substantial amounts of
local and Federal funds. It was his contention that work now
underway on Shirley Highway, especially the $52,000,0000 "Mixing
Bowl" project, which is in the immediate vicinity of the proposed
Segment C-7 subway job, should, under the law and the Department's
regulations, be considered in determining the prevailing rates for
the Segment C-7 job, especially since much of the work is similar
to the proposed work. By letter of November 5, 1971, the Assistant
Administrator, [5]
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[6] after reviewing the matter, affirmed Wage Decision AM-5,434 as issued,
advising that Petitioner could take an appeal of this wage determination
to the Wage Appeals Board.
Although the Washington Metropolitan Area Transit Authority
did not formally join in the Petition of the Federal Highway
Administrator, by letter of November 16, 1971, addressed to the
Board, its General Manager advised that: "We have examined the data
submitted to you by the Federal Highway Administration in its
petition. In light of the substantial differences shown between
the rates being paid on the Shirley Highway project and those
contained in wage determination AM-5,434, we are also of the
opinion that the matter should be reviewed by the Board to assure
the accuracy of that decision." He further advised that the
Authority had amended the invitation for bids, setting a new bid
opening date of December 8, 1971. That was subsequently changed to
December 15, 1971, by the Transit Authority, as the Board has an
established practice of not requesting agencies to change bid
opening dates.
By letter and telephonic notice, all interested parties were
notified that a hearing would be held in this matter on November
18, 1971 at the Department of Labor.
At the start of the hearing, Chairman Smith asked how many
wished to make oral statements. The following eight responded in
the affirmative: [List omitted.] [6]
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[7] At the conclusion of the November 18th hearing, all
interested parties were given an additional ten days (until
November 29, included) within which to submit any further evidence,
statements or data to be included in the record. Also, those so
wishing, were furnished sets of the material then of record in this
case.
Because of the large attendance at the hearing, and the number
of oral and written statements and briefs received, we have made it
a point to show in detail the names of those appearing at the
hearing and of those from whom written submissions were received.
In addition to those shown above, additional statements in support
of the Petition were received from the following: The Board of
Supervisors of the County of Fairfax joined in the written
statement submitted by the Arlington County Government; the City of
Fairfax and the Arlington County Chamber of Commerce submitted
statements in support of the Petition; the Fairfax County Chamber
of Commerce and the Alexandria Board of Trade submitted statements
supporting the position of the Petitioner. [7]
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[8] On December 2, 1971, the Wage Appeals Board met in executive
session at the Department of Labor to review the record, including
the oral testimony from the November 18th hearing, as well as the
original written record as supplemented by the written statements,
briefs, and other evidence and data received after the hearing and
included in the record on the subject case.
On the basis of this review of the entire record, the Board
has reached the following conclusions and order for the basic
reasons set forth below.
1. It was established that the wage rates in this disputed
Wage Decision AM-5,434 for Segment C-7 in Arlington County,
Virginia reflect the "Building and Heavy Construction" schedule
negotiated for the District of Columbia and recognized by the Wage
and Hour Division as prevailing there for that type of work.
Petitioner contends that the Wage Decision was made arbitrarily and
incorrectly under the applicable statutes. In this connection, he
cites the National Capitol Transportation Act of 1965, under which
the Secretary of Labor is authorized to determine prevailing wage
rates "in accordance with the Davis-Bacon Act, as amended." The
Davis-Bacon Act authorizes the Secretary to determine wages
"prevailing for the corresponding classes of laborers and mechanics
employed on projects of a character similar to the contract work in
the city, town, village, or other civil subdivision of the State in
which the work is to be performed, or in the District of Columbia [8]
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[9] if the work is to be performed there; . . ." He points out,
it is "an undisputed fact, reflected in wage determinations of the
Secretary for other work, that District of Columbia and Virginia
prevailing wage rates are dissimilar". Yet, he continues, the wage
floor for this Segment C-7 subway work in the Pentagon area, is
made to equal the District of Columbia rates.
Petitioner further contends that, in making his determination
for C-7, the Secretary should have looked to heavy construction
work in the Virginia area, radiating out from the Pentagon area
site of the C-7 job.
Opposing that concept and contention, Counsel for the
Administrator and Counsel for the Building and Construction Trades
Department support the Wage Decision in question and point to the
language of the Washington Metropolitan Transit Authority Compact,
pursuant to which Wage Decision No. AM-5,434, was issued. The
pertinent provision of the statute reads as follows:
The Board [Metro] shall take such action as may be
necessary to assure that all laborers and mechanics
employed by contractors or subcontractors in the
construction, alteration or repair, including painting
and decorating, of projects, buildings and works which
are undertaken by the Authority or are financially
assisted by it, shall be paid wages at rates not less
than those prevailing on similar construction [*] in the
locality [*] as determined by the Secretary of Labor in
accordance with the Davis-Bacon Act, as amended . . .
[*(Emphasis supplied)*]. [9]
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[10] Counsel contend that the phrase "in the locality"
substantially differs from the Davis-Bacon Act language relating to
projects of a character similar "in the city, town, village or
other civil subdivision of the State in which the work is to be
performed." Had Congress said, under the National Capitol
Transportation Act of 1965 and the Washington Metropolitan Transit
Authority Compact that the locality was to be that as provided in
the Davis-Bacon Act, Counsel continue, it would clearly and
emphatically have said so. "Locality" in the terms of these two
statutes, Counsel say, "could denote a limited or broad
geographical area upon which a wage determination could be made
depending, of course, upon the circumstances of each case."
"The legislative history and the Compact Agreement," Counsel
contend, "indicate clearly that this is a tri-politic operation
[D.C., Maryland and Virginia] and that the construction of the
transit system throughout the zone areas . . . is an integrated
functional operation by the three political bodies." The
"locality", therefore, "must be that of the project itself and a
determination based on the wages paid on this project and on
similar construction performed on or in the reasonable proximity to
the project is proper. A wage determination based on the
prevailing rates as paid to employees both on similar private and
public construction in the 'locality' encompassing the transit zone
area established by the [10]
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[11] Commission and set forth in Article III of the Compact Agreement
is a fair and reasonable one."
The Wage Appeals Board concludes that there can be more than
one "locality" within the geographical jurisdiction of Metro, and
within the meaning of the term "locality" as used in the two above
statutes involving the Metra construction.
Long before the enactment of the two statutes above-cited in
connection with the Metro contracts, the Department in its
Regulations, Parts 1 and 5, and in its administration and
coordination of enforcement of the Davis-Bacon and related Acts
pursuant to those Regulations, had firmly established the
connotations of such phrases as "locality" and "area".
Continuously, consistently, and for all practical purposes,
"locality" and "area" simply represent interchangeable descriptions
of the "city, town, etc" standard of the Davis-Bacon Act,
designating a limited geographical area based on political
subdivision boundaries. Those Regulations have also over the years
provided that, "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."
The Board is satisfied that, when the term "locality" is used,
as it is in the subject case, its purpose is to continue to limit
and not to broaden the area the Administrator takes into [11]
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[12]consideration in determining the appropriate prevailing wages for
a given contract the same as in any other Davis-Bacon wage
predetermination.
At the November 18th hearing, the Board asked Counsel for the
Administrator to research the legislative history of the two Metro
statutes referred to above, to determine whether Congress had any
specific intent in using the term "locality" in these laws. In the
briefs received after the hearing, it is noted that no such
legislative history has been cited to show that Congress meant
anything else by "locality" than what it and "area" and other
similar expressions have been deemed to connote by the Department
over the years.
There still remains the question, fairly raised by the Counsel
for the Building Trades Department, as to whether "locality" was
intended, under the circumstances here involved, to encompass the
entire area served by the Metropolitan Transit Authority, which is
a political entity; or whether, in the light of the numerous
political jurisdictions comprising the Metro area, the term
"locality" was rather intended to designate a geographical concept
less encompassing than the whole of the Metropolitan area. While
the statute and compact may be susceptible to the interpretation Counsel
for the Building Trades Department and Counsel for the Administrator [12]
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[13] wish to place on it, the Wage Appeals Board
believes that such an interpretation would be a strained one and
not in keeping with the Congressional intent. We believe that our
view in this respect is supported by the fact that Congress, which
over the years has frequently enacted Federally-assisted
legislation incorporating the labor standards provisions of the
Davis-Bacon Act, must be presumed to know the way in which the
Department of Labor has applied the Davis-Bacon Act and pertinent
regulations and, had Congress intended to clothe the Metro
legislation with a substantially different standard with respect to
the area or locality to be considered in predetermining prevailing
wages, it would not have used the phrase "locality" but rather some
other term of demarcation; possibly such as "in the Metropolitan
Transit Area". In the absence of any such clearly varied language,
we are forced to conclude that Congress intended that the standard
and generally recognized criteria of the Department of Labor as
established in its long accepted Regulations be utilized. On that
basis, the Department must continue to apply the limited area of
political locality as reflected in its lengthy history of utilizing
"city, town, etc." Consequently, the Board further concludes that
the Administrator is not warranted in giving the term "locality" an
interpretation coterminous with the entire jurisdiction of the
Washington Metropolitan Area considered as a political subdivision
and any such general use of such over-extended geographical
standard should be discontinued. [13]
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[14] 2. With Arlington County, the site of the work for C-7, thus
recognized as a "locality" for wage determination purposes, the
next issue is: What rates are applicable to this particular
project? In the first place, the Administrator must look to
Arlington County and apply the usual tests to determine the wage
rates prevailing on similar construction in that area in accordance
with the Davis-Bacon Act, as amended. /FN1/
The Board realizes that, up to the present, the bulk of the
Metro subway project has been and is being done in the District of
Columbia. We further appreciate that, for such work, the "Building
and Heavy Construction" negotiated schedule of wages has been
predetermined and paid in the District of Columbia. The question
now arises with respect to the C-7 Segment in the Pentagon area of
Arlington, whether the D. C. "Building and Heavy" rates should be
recognized as prevailing; or, rather, whether the Administrator
could find in the Pentagon area work of a character similar to the
proposed C-7 contract which would require recognition of its rates
as prevailing for the job in question. As we have said in
previous rulings, the basic principles of the Davis-Bacon Act and
of the corresponding provisions of [14]
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/FN1/ Although the Davis-Bacon Act refers to projects of a
character similar to the project work and the Metro legislation to
similar construction in the locality, the Board draws no
distinction in this matter. Although it can be argued that the
Metro legislation is less exacting in determining project by
project comparability than is the Davis-Bacon Act, the Board
concludes that Congress was simply expressing a general intent and
did not have in mind any major change in the administration of the
Davis-Bacon Act incorporated into the Metro statutes. [14]
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[15] Regulations, Part 1, must be applied strictly and with a
close eye to the facts of the particular project work in the
contested cases which come before the Board. These cases reach the
Board because they are close and difficult. It is irrelevant in
determining the appropriate wage rate for a project in Arlington
County that in the District of Columbia there are multiple
schedules such as "building", "heavy", a combined "building and
heavy" and "highway construction" (as the Administrator's office
informs us), whereas in Arlington County no factual information has
been presented to us that there is such an elaborate breakdown of
construction schedules. Accepting that, the project work (and the
wage classifications) in segment C-7 is properly characterized as
heavy work for wage predetermination purposes and that in the
District of Columbia such heavy work has been equated with building
work, and bears the same rate in the District as building work, it
does not follow that such heavy work in Arlington County at the
time the wage predetermination was made must similarly be equated
with the District of Columbia building rates or other building
rates. Looking at the facts which give rise to the guiding
principles, the question is: For a project such as the C-7
Segment, was there in Arlington County on October 8th when the wage
predetermination was issued, projects of a character similar to the
C-7 Segment from which the [15]
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[16] prevailing rates may be reflected, without the Administrator having
to look to the District or elsewhere for similar project work and prevailing
rates. We believe that in Arlington County there was and still is
current construction which must fairly and faithfully be considered
equivalent as a project of a character of similar construction to
the C-7 Segment.
There is in Arlington County in the Pentagon area where C-7 is
scheduled to be built, at least one project of a character similar
to the C-7 Segment contract, namely, the Shirley Highway
Interchange Complex known as the "Mixing Bowl" project, currently
underway by a four-firm Joint Venture.
The I-95 Mixing Bowl project, a $52,000,000 construction job,
covers a 1.1 mile stretch of a vast transportation complex leading
to Washington with four major traffic arteries' and innumerable
local roads and access drives coming together to pour thousands of
commuters into the governmental complexes on both sides of the
Potomac River. The Mixing Bowl project includes 2-cell and 4-cell
earth cut-&-cover reinforced box section over a length of 3,874
feet, and earth tunnel section over a length of 576 feet. Some 400
men and more than 176 pieces of construction equipment are today
building detours, final grades, final pavements, bridges and drainage
structures, retaining walls, and moving innumerable utility lines. [16]
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[17] Also, to achieve the Department of Transportation's plan to use the
median area of the existing road for an experimental all-bus lane, the
construction includes several substantial trestles to carry bus traffic
across both construction work and crossing roads. The plans call for as
many as 30 separate traffic lanes within a single complex traffic
interchange with numerous elevated arteries.
The Mixing Bowl Project and Project C-7 are both near the
Pentagon.
In our view, had the Segment C-7 contract been an independent
project undertaken by a governmental agency in Arlington County,
rather than a section of the Metro project, the Administrator would
have been required to predetermine for it the rates currently being
paid on the Mixing Bowl project underway in the same Pentagon area.
The fact that Segment C-7 is a part of the Metro system affords no
valid reason to preclude the Mixing Bowl job and to look to the
District in determining the appropriate prevailing rates for C-7.
The Board has noted that there was evidence submitted to the
effect that, because of Metro awards of two other contracts
involving work in the District and some in Arlington, some laborers
and mechanics are presently employed in Arlington County at the
"Building and Heavy" rates predetermined for the Segment C-7 project. [17]
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[18] However, because of the limited number of employees now working on
Metro construction in Arlington viewed against the size and workforce of
the Mixing Bowl project, as well as for other considerations outlined
above, we find it unnecessary to further consider this aspect of the case.
The exclusion of the Mixing Bowl complex which under the special facts and
circumstances is considered to be of a heavy nature from any determination
of the appropriate wage rates applicable to the C-7 Segment would create,
the Board believes, an artificiality not factually warranted in the
character of the two projects and in the appropriate classification
of the laborers and mechanics compared. /FN2/
The Board would like to point out that our decision in this
case is in full conformity to our July 26, 1971 decision in the
Tombigbee River case (WAB 71-02) and previous cases of this nature.
This decision is also in conformity with our decision in the
Jefferson County, Texas, levee case, (WAB 68-06), decided September
13, 1968. [18]
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/FN2/ The description of Segment C-7 work, on page 4 above,
apparently includes some work which may be classified as building
work (such as "above ground track power substation and chilled
water plant"). Should the Administrator so conclude, there is no
reason why he cannot apply the Arlington county building rate or
rates required for project work that is building and not heavy-type
in accordance with established Davis-Bacon principles. [18]
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ORDER:
The Assistant Administrator, Wage and Hour Division, is
requested to issue a new wage predetermination for the subject C-7
project at the earliest possible date, applying his usual standards
and criteria reflecting as prevailing rates those currently being
paid in Arlington County including the Mixing Bowl project.
SO ORDERED
Oscar S. Smith, Chairman
Stuart Rothman, Member
Clarence D. Barker, Member [19]
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