T. A. White Construction Co., WAB No. 73-06 (WAB May 22, 1973)
CCASE:
ESLAVA CREEK PROJECT
DDATE:
19730522
TTEXT:
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[1] UNITED STATES OF AMERICA
UNITED STATES DEPARTMENT OF LABOR
WAGE APPEALS BOARD
WASHINGTON, D.C.
IN THE MATTER OF
The Prevailing Wage Rates Applicable to the WAGE APPEALS BOARD
Construction of Pumping Stations and Force Case No. WAB 73-06
Main, Eslava Creek Project, Mobile County, Dated: May 22, 1973
Alabama; Wage Decision No 73-AL-43. /FN1/
Board of Water and Sewer Commissioners
of Mobile, Alabama,
PETITIONER
Mr. T. A. White, individually, and as
President of the T. A. White Construction Company and as
President of the Mobile County Roadbuilders Assn., Inc.
Mobile, Alabama,
INTERVENORS
APPEARANCES:
Thompson Powers, Esquire and
Ronald S. Cooper, Esquire,
Washington, D.C.
for the Petitioners;
Thomas G. Greaves, Jr., Esquire,
Mobile, Alabama
for the Petitioners-Intervenors; [1]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
/FN1/ This case may be cited as the Eslava Creek Project, Mobile
County, Alabama, WAB 73-06. [1]
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[2] Thomas X. Dunn, Esquire,
Washington, D.C.
for the Building & Construction Trades
Department, AFL-CIO;
George E. Rivers, Esquire,
Counsel for Construction Wage Standards,
U.S. Department of Labor
Washington, D.C.
BEFORE: Oscar S. Smith, Chairman,
Stuart Rothman and
Clarence D. Barker, Members,
Wage Appeals Board
* * *
DECISION AND ORDER
This case is before the Wage Appeals Board on the Petition
of the Board of Water and Sewer Commissioners of Mobile, Alabama
for review of Wage Predetermination No. 73-AL-43 made by the
Assistant Administrator of the Employment Standards Administration
(ESA) pursuant to Section 8(g) of the Water Pollution Control Act,
as amended, 33 U.S.C., Sec. 1158(g). Mr. T.A. White, individually,
and as President of the T.A. White Construction Company, and as
President of the Mobile County Roadbuilders Association, Inc., was
granted permission to intervene. The Petitioner contends that ESA
erroneously determined that the prevailing area rates for the
construction of a sewer main were those prevailing in the area for
commercial and industrial building construction. [2]
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[3] This decision, according to Petitioner, is contrary to the established
and continuing area practice of paying "highway" rates on outside
"water and sewer" projects and places unwarranted reliance on the
wage practices for work performed within industrial plants.
Reconsideration of the decision was requested of ESA and the wage
decision (73-AL-43) was affirmed.
The subject contract will involve two construction projects
referred to collectively as the Eslava Creek Project. Project
No. 566A involves the construction of a 27,000-foot force main,
along and in city streets, from the present Eslava Creek sewage
treatment facility to the McDuffie Island sewage treatment
facility. The force main will be constructed primarily of
48-inch pipe with push-on joints. Project 566B will involve the
construction of a pumping station at Eslava Creek and installation
of new pumps in the Fay Lane lifting station. It is estimated that
566A will require 12 months to complete and cost between $3,000,000
and $4,000,000. The estimated time and cost of construction of
566B is 6 months and $500,000. [3]
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[4] Phases 566A and 566B were described initially by the
Environmental Protection Agency (EPA), the Federal agency here
involved, in the wage determination request as interceptor sewers,
force main and pumping station. Beginning with wage determination
72-AL-324 of October 27, 1972, these projects have been described
as an expansion of an existing 16 MGD Sludge Secondary Sewage
Treatment Plant to a 20 MGD activated Sludge Sewage Treatment
Plant, interceptor sewers, pump station and force mains. /FN2/ [4]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
/FN2/ The chronology of the five wage determinations furnished the
petitioner through the Environmental Protection Agency for the
Eslava Creek project: 1) Wage Decision No. 72-AL-198, issued on
July 27, 1972, established separate schedules for the "Building"
(566B) and "water & sewer" (566A) construction aspects of the
project; 2) No. AM-8-620 (Fed. Reg. Vol. 37, No. 112, pp. 11625-
11626) was furnished by the EPA on October 20, 1972. The cover
letter from EPA noted that only "building" rates were scheduled and
indicated that this was intended to modify only the "building"
schedule of the previous determination; 3) No. 72-AL-324, issued
October 27, 1972, established a new schedule for "water & sewer
construction", and noted that "Building construction rates are in
the Federal Register." The "water & sewer construction" rates were
at the level recognized for "highway" construction. A modification
to 72-AL-324 was issued on November 29, 1972; 4) No. 72-AL-423,
issued on December 7, 1972, contained a schedule labeled "water &
sewer construction" and noted, "See Federal Register for Building
Construction Rates." The "water & sewer" schedule approximated the
rates paid for "building" construction; and 5) No. 73-AL-43, issued
on February 22, 1973, contained a single schedule which was
indicated as applicable to "building" and "heavy" construction.
[Note: Building and Heavy rates are the same in Mobile.] [4]
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[5] Petitioner states that this change in caption does not
represent any change in the work to be performed under phases 566A
and B but only reflects the fact that these projects are elements
of a larger improvement to sewage facilities. Phases 566A and B
are to be followed by the renovation and expansion of the McDuffie
Island Sewage Treatment facility. This renovation and expansion
project is presently in the design state and will so remain for an
additional six months.
The subject wage determination was based on a review by ESA of
over fifty projects in Mobile County. All but nine of these
projects were excluded from consideration in calculating the
prevailing rate. These projects were excluded either because the
project was not current, the project was considered dissimilar, or
the project report contained insufficient information on which to
determine its relevance under 29 CFR 1.2. The nine projects used
to calculate the prevailing rate were projects currently underway.
The central question in this matter is whether in issuing the
subject wage determination ESA relied on the appropriate wage data
under the applicable statutory and regulatory standards. /FN3/ [5]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
/FN3/ The subject wage determination was issued pursuant to the
Water Pollution Control Act, the prevailing wage provisions of
which require such determinations to be made by the Secretary of
Labor [FN3 CONTINUED ON PAGE 6] in accordance with the Davis-Bacon
Act. The pertinent provisions of the statute read as follows:
Sec. 1158(g) [33 U.S.C.] Labor Standards (Sec. 8(g) of the
Water Pollution Control Act, as amended):
(g) The Administrator shall take such action as may be
necessary to insure that all laborers and mechanics employed
by contractors or subcontractors on projects for which grants
are made under this section shall be paid wages at rates not
less than those prevailing for the same type of work on
similar construction in the immediate locality, as determined
by the Secretary of Labor, in accordance with sections 276a
to 276a-5 of Title 40. The Secretary of Labor shall have,
with respect to the labor standards specified in this
subsection, the authority and functions set forth in
Reorganization Plan Number 14 of 1950 and section 276c of
Title 40.
The wage determination provisions of the Davis-Bacon Act
provide for[:]
. . . minimum wages to be paid various classes of laborers
and mechanics which shall be based upon the wages that will
be determined by the Secretary of Labor to be 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
. . . [Sec. 1 of the Davis-Bacon Act, 40 U.S.C. 276(a)] -
[*](Emphasis added.)[*]
[FN3 CONTINUED ON PAGE 7]
The pertinent provisions of the Department's Regulations
[29 CFR, Part 1] as they relate to this matter read as follows:
Sec. 1.2 Definitions.
(b) The term "area" in determining wage rates under the
Davis-Bacon Act and the prevailing wage provisions of the
other statutes listed in Appendix A shall mean the city,
town, village, or other civil subdivision of the State in
which the work is to be performed. . .
Sec. 1.8 Scope of consideration.
(a) In making a wage determination projects completed more
than one year prior to the date of request for the
determination [*] may, but need not be considered [*].
[*](Emphasis added.)[*]
Sec. 1.16 Review by Wage Appeals Board.
Any interested person may appeal to the Wage Appeals Board
for a review of a determination of wage rates made under
this part, or any findings and conclusions made on the
record of any hearings held under [sec] 1.3(c). Any such
appeal may, in the discretion of the Wage Appeals Board, be
received, accepted, and decided in accordance with the
provisions of 29 CFR Part 7 and such other procedures as the
Board may establish. [END FN3]
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[6] In challenging the proper application of the relevant provisions
of the statutes and regulations the Petitioner and Intervenors dwell
principally on the criteria setting the standards for 1) projects of
a character similar to that proposed, and 2) the scope of the time [6]
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[7] period to be considered. The Petitioner does not dispute the
application of prevailing "building" rates to Phase 566B for the
construction of the Eslava Pumping Station and the installation of new
pumps at the Fay Lane Lifting Station. However, it asserts that the
Administrator erred in failing to recognize and apply to the force
main construction under Phase 566A, the lower highway rates in Mobile
County for similar "water and sewer" construction. In the course of
the April 12, 1973 hearing before the Wage Appeals Board, the parties
stressed certain alleged prevailing wage rates for the subject
contract and submitted corresponding data in support of their
positions, distributing copies thereof to the [7]
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[8] interested parties. ESA's data included 9 projects; Petitioner cited
34 projects; Petitioners-Intervenors referred to 26 projects; and the
Building Trades Department identified 31 projects allegedly of a
character similar to the work in question.
In view of the above development and to afford all parties
sufficient opportunity to review the volume of project data submitted,
the Board proposed that each party take the four lists of projects
allegedly of a character similar to the project in question, review
them, and report back with their respective views as to the projects
each considered should be included by ESA in predetermining the rates
for the subject contract and which should be excluded. The due date
for such comments was extended to May 1, 1973.
* * *
On an assessment of some fifty projects submitted by ESA,
Petitioner, Intervenors, and the Building Trades Department which
provided in whole or in part for sanitary or storm sewer and water
line work, the Wage Appeals Board clearly discerns that there has been
and currently exists in the Mobile area projects properly classified
as projects for sewer and water line work. The instant project, 566A
which is primarily if not wholly located in public areas and
thoroughfares and connecting with a principal public or municipal
sewage disposal system is such a project. /FN4/ These [8]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
/FN4/ By a "municipal system," the Wage Appeals Board means a
comprehensive system, whether publicly or privately owned, that serves
the public, excluding private septic systems or other limited
systems. [8]
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[9] projects have been undertaken by contractors who, apparently from
the information submitted, specialize in such public utility work.
But, such projects are also undertaken by contractors primarily
engaged in highway work, whether the sewer and water line work is
incidental to the highway work or independent of it. And such work of
a public utility nature apparently has also been undertaken by
contractors primarily engaged in building construction and who may
have performed such work at the building construction rates prevailing
in the Mobile locality. The Petitioners and the Intervenors say that
such work has been performed at the prevailing rates paid on highway
construction. The Building and Construction Trades Department
contends that there is a substantial number of construction projects
in connection with improvements or developments at industrial plants
performed as a part of such overall improvement or development and
that the wage rates paid on such projects should be included in ESA's
wage data computations. Additionally, the Building and Construction
Trades Department has pointed out that sewer and water line
construction undertaken as a part of or to become a part of a
principal sewage disposal system has been constructed at prevailing
rates for building construction. [9]
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[10] It is unnecessary for the Board to assess whether the tendency
to undertake sewer and water line work at prevailing highway rates or
at building construction rates is veering one way or the other. The
Board, however, sees no warrant in the project information considered
as a whole to conclude that public utility work in the Mobile
locality, such as this sewer line project, should now be deemed to be
a project of a character similar to industrial construction or highway
construction.
There can and may well be in the fifty or so projects submitted
for review some projects undertaken in connection with the improvement
or development of an industrial plant which consist primarily of sewer
and water line work and which by design and construction
characteristics and project site conditions are not substantially
dissimilar from the more usual sewer and water line work undertaken in
connection with development, improvement, or expansion of a principal
public or municipal underground sewage disposal system. Such projects
although on industrial sites should be included in the ESA's
computation. There should be excluded from the computation sewer and
water line projects that are not underground but are hung from
bridges, piers, trestles or similar construction. For this reason the
Board excludes the sewer and water lines in [the] Mobile Vehicular
Tunnel Project. [10]
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[11] Although the Petitioners and the Intervenors claim that sewer
and water line work is constructed at highway rates, the Wage Appeals
Board does not conclude that this is so on the basis of the projects
submitted. The Petitioner has noted that in a substantial number of
cases there have been intermediate wage classifications above the
highway rates but below the building construction rates. There is no
issue in this case with respect to the pumping station construction at
Eslava Creek or the installation of new pumps in the Fay Lane lifting
station under Project 566B, which will be undertaken at the prevailing
building construction rates.
* * *
Having reached the foregoing conclusions, the Board in order to
accommodate the Mobile Board of Water and sewer Commissioners under
the time limitations involved, issued the following telegraphic Order
on May 9, 1973 which is hereby confirmed: [11]
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[12] ORDER
Case No. WAB-73-6 is remanded to the Assistant
Administrator, Employment Standards Administration (ESA) to
issue a new wage predetermination pursuant to ESA's standard
practices and procedures subject to the following direction
as to the kinds of projects to be included in the wage
analysis on which the new predetermination shall be based.
The following projects shall be included:
1) All underground sanitary or storm sewer and water line
projects which are constructed as a part of a principal
municipal sewer or water system.
2) All underground sewer and water line projects privately
constructed during subdivision development which connect
into the principal municipal sewer and water system.
3) Those underground sewer and water projects on industrial
sites, if any, which connect to and in effect become a part
of municipal sewer and water systems and which are not
substantially distinguishable in design and nature of
construction from projects in No. 1 above.
4) Underground sewer and water work combined with paving or
highway work when the water and sewer lines are a major and
substantial part of the project, whether in publicly
dedicated areas or in privately constructed subdivisions,
and the water and sewer lines are tied into the municipal
water and sewer systems.
The following projects shall be excluded:
1) All highway projects, including storm run-off or other
sewer work incidental to the primary project. [12]
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[13] 2) All local paving projects including sewer and water work
incidental to the primary project.
3) Water and sewer projects for industrial use on industrial
sites, except as set forth in 3) above.
4) Water and sewer line projects which are included in the
Mobile Vehicular Tunnel Project.
The Wage Appeals Board concludes that the above description
of projects to be included and excluded will provide ESA
with adequate and reasonable criteria for the proper
clarification of the projects submitted by the parties in
support of their positions. ESA shall apply its normal
practices and procedures with respect to determining the
currency of the Jobs used. If ESA concludes that other than
going jobs should be included, ESA should go back over a
6-month period.
BY ORDER OF THE BOARD:
Oscar S. Smith, Chairman
Stuart Rothman, Member
Clarence D. Barker, Member
WAGE APPEALS BOARD [13]
