Anderson Construction, Co., Inc., WAB No. 1972-06 (WAB June 14, 1972)
CCASE:
CLINTON DAM PROJECT
DDATE:
19720614
TTEXT:
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[1] UNITED STATES OF AMERICA
UNITED STATES DEPARTMENT OF LABOR
WAGE APPEALS BOARD
IN THE MATTER OF
WAB
The Prevailing Wage Rates Applicable
to the Clinton Dam Project; U.S. Army Case No. 72-06
Corps of Engineers Invitation to Bid
No. DACW 72-B-0071; Wage Determination Dated: June 14, 1972
72-KS-102; Douglas County, Kansas
Anderson Construction, Company, Inc.;
Reece Construction Company;
Riddle Contracting;
Cook Construction Company;
Heide-Christolear Construction Co.;
Hixson and Lehenbauer;
Bushaan Construction Company;
Van Pak Construction, Inc.,
PETITIONERS
APPEARANCES:
William G. Haynes, Esquire,
Topeka, Kansas
for the Petitioners
Also listed under Appearances
for or in support of the
Petitioners:
Austin Nothern, Esquire,
Topeka, Kansas
Mr. Walter F. Heide,
Smith Center, Kansas
Mr. H. J. Lehenbauer,
Topeka, Kansas
Mr. R. V. Anderson,
Holton, Kansas
* * * [1]
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[2] Martin K. Eby Construction Co., Inc.;
List and Clark Construction Co.;
J. A. Tobin Construction Co., Inc.;
The Associated General Contractors
of Missouri, Inc.; and the
Eastern Kansas Contractors
Association, Individually, and
Representative of a Class of
Construction Contractors who are or
may be Prospective Bidders on the
Clinton Dam Project;
Intervenors in Opposition to Petitioners
James W. Kelly, Esquire,
Jefferson City, Missouri
for Petitioners -- Intervenors
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,
Employment Standards Administration,
Wage and Hour Division, USDL
Also listed under Appearances for or in
support of the Building and Construction
Trades Department, AFL-CIO: (all of
Washington, D. C., unless otherwise
specified).
John J. Manning, Esquire,
I.U.O.E. Local 101,
Kansas City, Missouri [2]
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[3] Mr. Faust Moreschi,
Laborers' International Union
Mr. Roy W. Gooden,
Local 101 IUOE,
Topeka, Kansas
Mr. Dan E. Sullivan,
Local 101 IUOE,
Kansas City, Missouri
Mr. Clem Blangers,
L.U. 101, IUOE,
Kansas City, Missouri
Mr. G. E. McCoy,
Special Representative, IUOE
Mr. Claude W. Means,
United Brotherhood of Carpenters
Mr. D. D. Danielson,
United Brotherhood of Carpenters
Charles E. Hutsler, Esquire,
Ironworkers International Union
Mr. O. L. Kerth,
IBEW
Mr. James C. Sharp,
IBEW
Also Appearing:
Mr. Jack N. Gregory,
Office of Chief of Engineers,
Washington, D.C.
Mr. E. L. Fenn,
Office of Chief of Engineers,
Washington, D. C.
Mr. Myrle E. Maddox,
Kansas City District,
Corps of Engineers [3]
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[4] Alvin Bramow, Esquire,
Office of the Solicitor,
Washington, D.C.
Mr. George Vermilyea,
Office of the Assistant Administrator,
Washington, D. C.
Mr. Joe M. Clark,
Overland Park, Kansas
BEFORE: Oscar S. Smith, Chairman,
Wage Appeals Board,
Stuart Rothman and
Clarence D. Barker, Members
DECISION AND ORDER
This case is before the Wage Appeals Board on the May 12, 1972
Petition by the Anderson Construction Company, et al., requesting
a review of Wage Determination No. 72-KS-102 dated May 11, 1972,
issued by the Administrator, Employment Standards Administration
of the United States Department of Labor, for the Clinton Dam
Project, a U.S. Army Corps of Engineers project, Invitation
Number DACW-41-72-B-0071, located in Douglas County, Kansas.
The Administrator has issued three different wage
predeterminations for the project in question, namely, 72-KS-1,
72-KS-93, and 72-KS-102 and the Wage Appeals Board is called upon
to determine which, if any, is the correct one. The predicament of
the Administrator is quite understandable in that the Clinton Dam
project lies about 40 miles from Kansas City; is also near [4]
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[5]Lawrence, Kansas; is considered to be in the Topeka labor market;
and is located in Douglas County which, with adjacent and close
counties, show a checkered variation in the prevailing wage levels
without a clearly identifiable pattern for the general area for
projects of a character similar to the project in question.
On February 16, 1972 the Administrator issued Wage
Determination 72-KS-l applicable to the construction of the Clinton
Dam. The work under the contract for the construction of the dam
includes excavation, earth fill embankment, concrete outlet works
and spillway, placement of rip-rap stone, clearing, seeding and
mulching. The estimated cost of the project is $20,000,000.
The hourly wage rates contained in the initial wage determination
were based on collective bargaining agreements negotiated between
heavy construction contractors and local unions in the area.
On April 3, 1972 Petitioners herein protested the rates
as not reflecting those being paid on similar construction
in the locality. As a result, the Administrator had a survey
made in the area of "projects of a character similar" to the
Clinton Dam. The survey showed the $9,936,700 Melvern Dam
nearing completion in adjoining Osage County and which is now
96% complete. The rates paid on the Melvern Dam were adopted [5]
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[6] as reflective of rates prevailing on projects of a character
similar in the area and consequently, Wage Determination 72-KS-1
was superseded by Wage Determination 72-KS-93, dated May 2, 19720
On May 5, the Kansas State Building and Construction Trades
Council protested Wage Decision 72-KS-93. It urged the restoration
of the wage rates and fringe benefits contained in the earlier
wage decision 72-KS-1. Upon this turn of events, the Administrator
further reviewed the rates paid on dams and other similar
construction projects in the area roughly bounded by Osage to Linn
to Jefferson Counties, which forms a geographical triangle around
Douglas County. This survey showed that a $6,500,000 dam had
been completed in March, 1971 for the Kansas City Power and Light
and Kansas Gas and Electric Companies in Linn County, Kansas,
a county once removed from the site of the Clinton Dam. Moreover,
a compilation was made of the rates paid on both the Melvern and
the Kansas City Power and Light dams. Because the numbers of
laborers and mechanics employed on the latter substantially
outnumbered those employed on the Melvern Dam, only the Kansas
City Power and Light Dam was used. The wage determination was
once again superseded by Wage Decision 72-KS-102 issued on May 11,
1972, reflecting the higher rates from the Kansas City Power and
Light Dam in Linn County. [6]
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[7] On May 12, 1972 Petitioners protested the new Wage
Determination 72-KS-102. Their protest was reviewed by the
Administrator and the third wage determination, 72-ES-102, was
affirmed. The sole basis of the appeal is that, since the Melvern
Dam is located in a county adjoining Douglas County, its rates
should govern.
* * *
This is no easy decision for the Wage Appeals Board to make,
and the hearing held in Washington on June 5, 1972 did not produce
much cogent additional factual data. However, on the basis of
the hearing and the record before the Administrator, the Board can
clearly perceive certain appropriate principles applicable to the
resolution of the issue presented, and applicable to the particular
factual situation in Douglas County and in surrounding appropriate
areas.
Clinton Dam in Douglas County lies within a triangle of three
dams recently constructed or still under construction. Melvern Dam
is in Osage County partially next to Douglas County; the Kansas
City Power and Light Dam in Linn County is on the other side of
Douglas County but one county removed; and the Perry Dam is located
in Jefferson County. These three dams are of considerable
magnitude and their construction has extended over several years. [7]
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[8] The Melvern Dam was started in 1967, and is still under
construction. The Kansas City Power and Light Dam was completed in
1971, although some work on the overall project is yet to be
completed; and the Perry Dam was started in 1964 and completed in
1969. The spokesmen for the Petitioners, the Intervenors, the
Building Trades Unions and the Administrator were not sufficiently
informative as to the exact current status of these three projects,
particularly with respect to how much work remains to be done
under existing contracting authorization or to be added by new
contract authorization; how many employees by craft and
classification are presently on the three sites; and, where the
projects were recently fully completed, how recently. It appears
that heavy work (including site grading and sewers for campsites)
is now underway at both the Melvern and Perry Dams. There is also
a large amount of work yet to be done at the Kansas City Power
and Light project.
The Petitioner's basic premise is that the Kansas City Power
Project is one county removed from Douglas County while the Melvern
project is not. In distance, Melvern is 35 miles from the Clinton
Dam site, and the Kansas City Power and Light Dam is 55 miles away.
The Perry project above Douglas County is the closest [8]
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[9] of all and in an adjacent county but work on the Perry Dam proper
was completed in 1969. Areawide rates negotiated by a contractors
association such as the Eastern Kansas Contractors Association in
this case are not in fact uniformly applicable in Douglas or the
surrounding counties. There is no uniform pattern. The factual
situation is, as stated above, checkered from political subdivision
to political subdivision. It is a cardinal principle of
Davis-Bacon administration that the level of prevailing wages paid
to a majority of laborers and mechanics by crafts and
classifications is a hard-fact payroll determination. Under the
circumstances, we believe the Administrator was on the right track
when he considered not only the Melvern Dam but also the Kansas
City Power Dam, and he should also have completed the triangle by
including other heavy construction work currently in progress at
the Perry Dam location which is of a character similar to the work
to be done on the Clinton Dam. /FN1/ [9]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
/FN1/ Section 1.6(a) and (b) of Regulations, Part 1 (29 CFR Part
1) provide as follows:
(a) In making a wage rate determination projects completed more
than one year prior to the date of request for the determination
may, but need not be considered.
(b) 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 Wage Appeals Board does not construe this Section as
requiring the Administrator, in a variegated wage rate situation
[FN1 CONTINUED ON PAGE 10] such as this one, mechanically and by
rote to use only the wage rates for a project started five years
earlier that is in only one adjacent county. The record indicates
there were other similar construction jobs in the triangle area in
adjoining or once-removed counties, one of which, though generally
completed being mileage-wise closest to the proposed Clinton Dam.
In a case of this nature, and especially where, as here, there are
several protests, the Administrator must use a sufficiently
realistic and comprehensive field of data based on payroll evidence
to resolve the issues raised by the protests and to fulfill his
statutory functions fairly and fully. [END FN1]
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[10] Under the facts and circumstances of this case, we find that
the Administrator should have considered all heavy construction
projects (disregarding local sewer and paving contracts not heavy
in nature) in the surrounding counties, including those in Douglas,
Shawnee, Osage, Linn, Miami and Jefferson counties. Surveys
already made by the Administrator indicate that the following
projects should be considered:
Melvern Dam, Osage County, $9,936,700.00
Flood Protection Works, Douglas County
Melvern Lake, Osage County, $1,773,100 (Roads)
Melvern Lake, Osage County, $448,900 (Clearing)
Melvern Lake, Osage County, $1,717,652 (Public Use)
Perry Lake, Jefferson County, $414,800 (Camping and
recreational area)
Perry Lake, Jefferson County, $90,000 (Breakwater Extensions)
Water Basin Repairs, Douglas County, $60,000
Flood Protection Works, Shawnee County, $1,841,343
Melvern Lake, Osage County (Roads similar to project #3)
Repair Concrete Water Tank, Shawnee County, $171,000
Kansas City Power and Light Dam, Linn County, $6,500,000
and any other heavy construction work on this project,
and also any heavy construction work currently underway
at Clinton Dam utilizing the crafts and classifications
involved in the protests. /FN2/ [10]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
/FN2/ There was testimony at the June 5 hearing that certain heavy
work is already underway at Clinton Dam. [10]
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[11] ORDER
This case is remanded to the Assistant Administrator, Wage
and Hour Division, for a recalculation of Wage Decision 72-KS-102
or the issuance of a new determination in accordance with the
foregoing findings and direction.
SO ORDERED
Oscar S. Smith, Chairman
Stuart Rothman, Member
Clarence D. Barker, Member [11]
