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CCASE:
VIRGINIA SEGMENT C-7, METRO
DDATE:
19720218
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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. 71-05
Applicable to the Construction of
Virginia Segment C-7 (Huntington Dated: February 18, 1972
Route) of the Metropolitan Rapid
Rail Transit System in Arlington
County, Virginia.
The Building and Construction Trades
Department, AFL-CIO,
Washington, D. C.,
PETITIONER
APPEARANCES:
Thomas X. Dunn, Esquire,
Associate General Counsel for the
Building & Construction Trades
Department, AFL-CIO and for the
International Brotherhood of
Electrical Workers,
Washington, D. C.
George E. Rivers, Esquire,
Counsel for Contract Wage Standards,
Office of the Solicitor, and
Counsel for the Assistant Administrator,
Wage and Hour Division
Also listed under Appearances
for or in support of the
Petitioner (all of Washington, D. C.):
Mr. Robert Georgine,
Secretary-Treasurer,
Building and Construction Trades Department, AFL-CIO; [1]
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[2] William A. McGowan, Esquire,
General Counsel,
United Brotherhood of Carpenters and
Joiners of America;
Gerald Trainor, Esquire,
General Counsel,
International Union of Operating Engineers;
Robert Connerton, Esquire,
General Counsel,
Laborers International Union;
Mr. D. D. Danielson,
United Brotherhood of Carpenters;
Mr. William J. McSorley,
Building and Construction Trades Department;
Charles E. Hutsler, Esquire,
Ironworkers International Union;
Mr. Faust Moreschi,
Laborers International Union;
Mr. O. L. Kerth,
International Brotherhood of Electrical Workers
Also Appearing:
Mr. Frank B. Peebles,
FHWA Region 9,
San Francisco, California;
Mr. William E. Winfrey,
Virginia Department of Highways;
Mr. F. L. Burroughs,
Virginia Department of Highways;
Norman S. MacPhee, Esquire,
Office of General Counsel, FHWA [2]
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[3]; Mr. Raymond R. Crowe,
American Road Builders Association;
Mr. William H. Craig, Jr.,
Virginia Road Builders Association;
Mr. Peter J. Sheehan,
Washington Metropolitan Area Transit Authority;
Hal E. Nelson, Esquire,
Office of the Solicitor,
U.S. Department of Labor;
Craig Bulger, Esquire,
Employment Standards Administration,
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
This case is before the Wage Appeals Board on the December 17,
1971 Petition filed by the Building and Construction Trades
Department, AFL-CIO for review of Wage Determination No. AM-9, 208
issued December 13, 1971 on behalf of the Secretary of Labor by the
Division of Wage Determinations, Employment Standards
Administration (hereinafter referred to also as "the Wage
Determination Division", or "the Administrator" [or Assistant
Administrator, Wage and Hour Division, who also heads up the Wage
Determination Division]). [3]
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[4] Wage Determination No. AM-9,208 was issued by the
Administrator following the Board's decision of December 7, 1971 in
Wage Appeals Board Case No. 71-04 ("In the Matter of the Wage Rates
Applicable to the Construction of Virginia Segment C-7 [Huntington
Route] of the Metropolitan Rapid Rail Transit System in Arlington
County, Virginia"), and superseded Wage Determination No. AM-5,434
dated October 8, 1971 which was before the Board in Case No. WAB
71-04.
In WAB 71-04 the Board directed the Division of Wage
Determinations as follows:
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."
The so-called Mixing Bowl project is the $52,000,000 Shirley
Highway Interchange Complex job currently underway in the same
Pentagon area of Arlington County where the Segment C-7 Metro
contract in question is scheduled to be constructed. It covers a
1.1 mile stretch of a vast transportation complex leading to
Washington with four major traffic arteries and a large number of
local roads and access drives coming together to pour thousands of
commuters into the governmental installations on both sides of [4]
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[5] the Potomac River. The plans call for as many as 30 separate
traffic lanes within a single complex traffic interchange with
numerous elevated arteries. Some 400 men and more than 176 pieces
of construction equipment have been engaged in this project
building detours, final grades, final pavements, bridges and
drainage structures, retaining walls, and moving innumerable
utility lines. 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 Mixing Bowl project is not the usual run of what is
considered as "highway construction." As a matter of fact, it is
a rather unique project because it involves a substantial amount of
heavy concrete construction work other than for paving. If all it
involved were paved streets or roads, even though located in the
same Pentagon area where C-7 is scheduled to be constructed, it
would not have been viewed as similar construction in the Board's
December 7th decision in 71-04. The Mixing Bowl project includes,
for example, 2-cell and 4-cell earth cut-and-cover reinforced box
section over a length of 3,874 feet, and earth tunnel section over
a length of 576 feet. In this connection, it [5]
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[6] is noted that evidence submitted by the Petitioner in WAB 71-04
cited the similarities in construction between C-7 and the Shirley
Highway Mixing Bowl project as follows:
A major item of work on C-7 is support of excavation.
Two methods are allowed by the specifications --
soldiers, with lagging and sheet piling. Both methods
have been used on the Shirley Contract. A 200 lineal
foot section was supported to a height of 60 feet by the
use of (ZP 27) sheet piling and bracing. In another
location an excavation of approximately 500 lineal feet
was supported to a 30-foot height by the use of soldiers
and lagging. Both systems were installed by regularly
employed job personnel, supervision and equipment. No
off site specialty field personnel or equipment were
required. Another minor item of work is the construction
of approximately 2,100 lineal feet of double concrete box
line, 14 feet by 15 feet and 250 lineal feet of single
concrete box line. A similar somewhat smaller concrete
box culvert 10 x 8 feet has been constructed on the
Shirley Contract. The planned method forming rebar
placement, concrete placement and finishing are
practically identical.
The question presented by the Petitioner in this case (WAB
71-05) involves the correctness of the Administrator's supersedeas
wage determination No. AM-9,208 of December 13, 1971, namely, in
issuing that determination, did he properly apply the Board's Order
of December 7, 1971 in WAB 71-04 and did he comply with the
traditional criteria of the Davis-Bacon and related Acts and of
Regulations, Parts 1 and 5. The Board concludes that the
Administrator did comply with the Board's directions in WAB 71-04
in principle and that he applied recognized criteria [6]
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[7] in accordance with the applicable law and regulations. However,
for the reasons discussed below, the Board finds that a further
assessment of wage conditions in the Arlington County locality is
required to assure the accuracy of the Administrator's
computations. Whether or not such further study and calculation of
wage rates in fact paid in Arlington County on projects of a
character similar to C-7 would result in any modification of Wage
Decision AM-9,208 will be a factual matter to be determined in
accordance with this decision.
The principal contentions of the Petitioner continue to be:
1. In issuing his Wage Determination for Segment C-7 the
Administrator should have taken into consideration the wage rates
for building construction in the District of Columbia because these
are the wage rates under a so-called "Building and Heavy
Construction rate schedule" which is being applied to Metro project
construction within the District. If the Arlington County Mixing
Bowl project should have been included at all, the Administrator
should have balanced the number of employees working on it against
the total number of employees engaged on heavy construction,
particularly the Metro projects in the District of Columbia.
Preferably, despite the Board's decision in Case No. WAB 71-04, the
Administrator should have [7]
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[8] excluded the Mixing Bowl project altogether because, according to the
Petitioner, it is strictly a highway job.
2. Alternatively, Petitioner contends that the Administrator
should have weighed the number of laborers and mechanics who were
working at some appropriate time "in the tunnel" on the Mixing Bowl
job with the number of laborers and mechanics who were working at
the same specified time on Metro Projects C-4 and C-5 in Arlington
County. The Petitioner would carefully identify and distinguish
the number and classifications of laborers and mechanics doing the
work "in the tunnel" on the Mixing Bowl project and compare them
only with the numbers and classifications of laborers and mechanics
working on all part of the Metro projects C-4 and C-5.
Under this alternative approach, the specified time of
comparison would be recent in time and short in duration because
the contract for Metro project C-5 was only recently awarded.
During this recent period in 1971, the tunnel work on the Mixing
Bowl project was nearing completion. Testimony was submitted that
the underground tunnel work on the Mixing Bowl project was
completed in November, 1971. Project C-4 has been awarded for some
time but, by letter dated February 1, 1972, Metro corrected and
clarified a statement made at the January 20th [8]
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[9] hearing. Metro informed the Board that no work had been started
and no laborers and mechanics had been employed under C-4 in Arlington
County as of February 1, 1972.
At the Board's January 20th hearing on the Petition,
contentions were made and concern expressed over a number of
matters which had been resolved in Case No. WAB 71-04. The Board
believes it is appropriate, however, in this strongly contested
case to elucidate further on WAB 71-04 for the future guidance of
the Division of Wage Determinations.
Regulations, Parts 1 and 5 of the Secretary of Labor have
become a fundamental, accepted and respected part of the overall
administration of the Davis-Bacon Act and its related statutes.
Material deviation from the principles of the Act and Regulations,
Parts 1 and 5 to achieve a desired local result is not to be taken
lightly. In Case No. WAB 71-04, the Wage Appeals Board broke no
new ground in concluding that Arlington County under applicable law
is not the same locality as the District of Columbia for
determining the prevailing wages for Metro project C-7 in the
Pentagon area of Arlington County. The Board in Case No. WAB 71-04
found that since there was no clear Congressional intent that
Regulations, Parts 1 and 5 were not to be applied to Metro's
contracting practices, there was no justification for saying that[9]
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[10]the area concepts defined and applied in those regulations were
not applicable to Metro work. Counsel for the Administrator was
requested to make some showing of Congressional intent that
"locality" in the Metro legislation had a different meaning than
that recognized in Davis-Bacon Act administration generally, and he
did not do so.
There has been concern[] expressed that in directing that the
number of employees working on the Mixing Bowl project be taken
into account by the Administrator in determining the prevailing
wages for C-7, the Wage Appeals Board was establishing as a general
or universal principle that highway wage rates will be used in
making wage determinations for heavy work. This is not so.
Conversely, it has been thought by some that wage rates paid upon
heavy work would be generally used for highway wage determinations.
This assumption is not correct either.
The Mixing Bowl project is to be included not because it is or
is not highway work but because of the nature and characteristics
of the work subject to the particular construction award. The
unique nature of the Mixing Bowl job, as detailed above, make it as
a matter of fact construction similar to the work to be performed
under the wage decision in issue. The Mixing Bowl work is not
similar to the usual or even unusually difficult highway [10]
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[11] job, but is of such substantial magnitude and complexity as to
be in a class by itself and is considered heavy work. And, in the
absence of locality practice, there is no more justification for
using building rates for heavy work than there is for using
straight highway rates for heavy work. The Davis-Bacon Act has
withstood the test of time for a period approaching a half century
because of the Department's efforts to achieve consistency of
interpretation and uniformity of administration and enforcement.
It has been used as a shield against lowering prevailing wage rates
for laborers and mechanics employed on projects of a character
similar to the contract work in the particular geographical area.
But the [11]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
/FN1/ Without a special heavy classification in the District of
Columbia, the practice is that heavy work is done at building
rates. Without such a clearly identifiable and established local
practice in Arlington County, there is no justification for
requiring that the practice in Arlington County shall be the same
as in the District of Columbia. In the hearings it was brought out
that had the Mixing Bowl been built in the District of Columbia it
would have been considered heavy work and built at building rates.
By its nature it is heavy work. As heavy work in Arlington County,
it is in fact being built at non-building rates, either District or
Arlington County. This is a fact that can not be ignored by the
Administrator. [11]
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[12] Act was not intended to be used as a sword to insert wage
rates or practices that are not in fact reflected by wage
conditions in the particular locality of the construction contract
award. Uniformity of administration of the Davis-Bacon Act under
Reorganization Plan No. 14 does not permit the incorporation of the
District of Columbia Metro building rates into the contract
specifications for Metro segments of the work awarded in Arlington
County if such rates are not in fact prevailing in Arlington County
and other rates are in fact being paid on projects similar to the
Metro work to be so contracted.
The Petitioner contends that the Administrator should have
calculated the wage computations for Metro project C-7 upon a study
of wage data that includes only those Mixing Bowl employees who
were working "in the tunnel" on the Mixing Bowl at some specified
time. Such a test would constitute a departure from consistently
applied Davis-Bacon Act rules that the test of corresponding
classifications of laborers and mechanics is not a comparison of
individual work or tasks, but a comparison of project by projects
of a character similar.
Under the normal and traditional application of Davis-Bacon
Act principles, if an Arlington based contractors association had
negotiated a special heavy construction schedule or project [12]
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[13] agreement for work similar to Segment C-7 for Arlington
County, but such wage rates, though negotiated, had not been in
fact paid, the Division of Wage Determinations could not
successfully sustain the imposition of such negotiated rates and
elaborate classifications in the face of payroll evidence that
other rates in fact prevailed. As we have said elsewhere in this
decision, when a reasonable and substantial challenge is made
concerning the characteristics of two projects in a locality, it is
incumbent on the Administrator to evaluate with discernment and
sensibility the nature of the projects and the factual wage
conditions. He cannot apply per se and per rote presumptive rules
when faced with such a challenge.
In many localities, particularly large cities, the pattern of
collective bargaining in the construction industry is that building
rates also encompass heavy rates. In other localities, and perhaps
predominantly so, a single wage schedule for heavy work and highway
work or, as it is often expressed, a highway/heavy schedule is
negotiated in collective bargaining. There are also instances of
negotiation of separate heavy, highway, and building schedules,
with the same or different employing groups of contractors. The
fact that in one locality building and heavy rates are the same
does not justify transporting such [13]
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[14] a practice to another even proximate locality, without factual
evidence in the second area to support the use of that practice.
All that is of concern here is the assessment of wage
conditions and local practice in Arlington County. The
construction of the Mixing Bowl by reason of its engineering,
architectural planning and developmental characteristics must be
considered as a project of a character similar to Segment C-7. In
passing it may be pointed out that there may be work awarded under
contracts of the Metro program where the Mixing Bowl construction
would not be considered similar work, but Segment C-7 is not such
a case. In WAB 68-06, (Jefferson County, Texas Levees) decided
September 23, 1968), we stated that under special facts and
circumstances the Administrator is not justified in defining the
similarity of projects solely in terms of their ultimate use.
Equally important is that the work of the laborers and mechanics
must be considered in terms of what, when, how and with whom the
work is done; the sequence of development operations;
architectural, engineering and other planning problems; as well as
the processes of construction. See Mattapony Towers, WAB 64-02. [14]
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[15] * * *
Federal law requires that laborers and mechanics employed on
intercity railroad work under Amtrak shall be paid "wages 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." See Rail Passenger Service Act of 1970, Public
Law 91-518, 84 Stat. 1327, Sec. 405(d). /FN2/ The applicable
language with respect to "locality" is identical with the Metro
Act. Assume construction work under the Rail Passenger Service Act
of 1970 from Washington, D. C. to Philadelphia; the contracting
agency advertises and awards the work in a number of segments. The
successful bidders are contractors subject to the National Labor
Relations Act and not the Railway Labor Act. It is clear beyond
cavil that the appropriate prevailing wage determination for a
segment contracted for in the District of Columbia will not be
applicable to a segment contracted for in Philadelphia or in
Baltimore or in Wilmington, or in other localities which have
distinctive and identifiable wage conditions of their own. In the
absence of other railroad work it would be necessary to look to
each of those localities for projects of a character similar to
railroad construction. [15]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
/FN2/ Section 405 of the Rail Passenger Service Act of 1970 makes
special provision that wage rates provided in collective bargaining
agreements negotiated under the Railway Labor Act shall be
considered as being in compliance with the Davis-Bacon Act. No
such exception for collectively negotiated agreements is applicable
to the Metro legislation. [15]
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[16] * * *
The facts of concrete payroll evidence by craft and classes of
mechanics and laborers give rise to Davis-Bacon Act principles and
determinations, and not the other way around. One of the
perplexing questions raised in this case is what use, if any,
should the Administrator make of the number of laborers and
mechanics employed on Metro Segment C-5, which is in Arlington
County. This contract was awarded on June 17, 1971, under a
Davis-Bacon determination which put the District of Columbia
building rates, unchallenged, into the specifications.
The Wage Appeals Board looks at the matter this way: There is
no evidence -- nothing has been presented one way or another --
that the rates of pay on C-5 have in fact been proximately caused
by the Davis-Bacon wage predetermination issued for this project.
As the parties and interested persons in this proceeding are aware
from representations made at the hearing, Metro Segment C-7, the
contract under consideration in WAB 71-04 may be awarded to the low
bidder who is in contractual relationship with the building and
construction trades unions in the District of Columbia. It appears
he would be obligated by reason of such agreements to pay wages
above those contained in Wage Determination No. AM-9,208, of
December 13, 1971. [16]
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[17] Since there are in fact laborers and mechanics working on
heavy construction in Arlington County, besides on the Mixing Bowl
job, /FN3/ and because of the importance that the Davis-Bacon
determinations be based upon painstaking and comprehensive review
of all factual wage data in the locality, the existence of these
laborers and mechanics working in Arlington County cannot be
overlooked and must be included in the prevailing wage rate
calculation. The Board believes that [*] the number [*] of
laborers and mechanics who have been engaged on the C-5 segment of
the work during the appropriate base period will have to be taken
into account for wage predetermination purposes. [*Emphasis in
original*]. On the other hand, since the rates for C-5 were
predetermined in conflict with the Board's conclusions in WAB 71-04
and herein the basis for the C-5 wage determination should not be
used to establish the method or practice upon which subsequent
Metro wage decisions are to be based.
With respect to C-4, since Metro has clarified the matter with
respect to work in Arlington County, namely, that as of February 1,
1972, no laborers or mechanics had worked in Arlington under this
contract, it would appear unlikely that the representative time
period mentioned above for recalculating payment evidence would
include any employees on the C-4 segment. [17]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
/FN3/ It is here noted that Counsel for the Petitioner and Counsel
for the Administrator agreed at the January 20th hearing that,
apart from the Mixing Bowl job, the C-4 and C-5 jobs were the
only heavy work underway in the Arlington area involved. [17]
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[18] * * * *
The Administrator in issuing AM-9,208, assumed as a practical
matter that the number of employees engaged on the C-5 and C-4
segments of the Metro project in Arlington County would not
predominate over the number of employees engaged upon the Mixing
Bowl construction. Apparently, he believed it was not necessary to
take C-5 into his calculations, particularly in view of perplexing
questions raised by the fact that the C-5 wage determination,
although not challenged, was not issued in accordance with the
principles discussed in Case No. WAB 71-04. However, in view of
the lingering doubts that will remain by reason of the instant
Petition unless the Administrator makes a recalculation, the case
will be remanded to the Administrator for reassessment and
recalculation in accordance with the following directions.
1. The Administrator shall select a fair and representative
base period in which to consider the total number of employees
working on all projects in Arlington County of a character similar
to Metro C-7. This base period should be selected on the basis of
traditional Davis-Bacon Act practice under such variegated
conditions. In the event the Administrator is unable to select
such time span under usual Davis-Bacon Act practices, he shall use
a time span of 12 months preceding December 14, 1971. In no event
shall he use a period less than 6 months. [18]
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[19] 2. The Administrator shall include in his determination the
total number of employees by classes of laborers and mechanics
under the construction contract awarded for the Mixing Bowl Project
and not only those who worked in the tunnel portion of that
project.
3. The Administrator shall include all other heavy
construction-type projects in Arlington County during the base
period which he may consider, as a fair choice of judgement under
Davis-Bacon principles to be of a character similar to the Segment
C-7 contract work.
4. The Administrator shall include the number of employees by
classes of laborers and mechanics engaged upon project C-5 during
the above-mentioned time span.
5. The Administrator shall include in his calculations the
number of employees, if any, who in fact worked full time in
Arlington County on the C-4 segment during the base period.
ORDER
This case is remanded to the Assistant Administrator, Wage and
Hour Division for a reevaluation and recalculation of Wage Decision
AM-9,208 in accordance with the foregoing directions.
SO ORDERED
Oscar S. Smith, Chairman
Stuart Rothman, Member
Clarence D. Barker, Member [19]
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