CCASE:
AMERON, INC.
DDATE:
19730914
TTEXT:
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[1] WAGE APPEALS BOARD
UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, D. C.
In the Matter of:
Applicability of the Davis-Bacon and Related WAB Case No. 73-07
Acts to Certain Fabrication Activities of
Ameron, Inc., Subcontractor to Vinnell SUPPLEMENTAL DECISION
Corporation, Prime Contractor on U.S.
Department of the Interior, Bureau of Dated: September 14, 1973
Reclamation Contract No. 14-06-D-7223,
Navajo Indian Irrigation Project, New Mexico.
Vinnell Corporation and
Ameron, Inc.,
APPEARANCES:
Richard G. Kleindienst, Esquire,
Robert R. Tinnin, Jr., Esquire
Albuquerque, New Mexico
for the Petitioners,
George E. Rivers, Esquire,
Counsel for Construction Wage Standards,
Office of the Solicitor and Counsel for
the Assistant Administrator, Wage and Hour
United States Department of Labor
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. [1]
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[2] Gerard R. Treanor, Esquire,
International Union of
Operating Engineers,
Washington, D.C.
Justin P. Patterson, Esquire,
Office of the Solicitor,
U. S. Department of Interior,
Washington, D.C.
SUPPLEMENTAL DECISION
Subsequent to the Wage Appeals Board's issuance of its
Decision and Order on September 14, 1973, the Solicitor of Labor
for the Employment Standards Administrator petitioned this Board to
hear the Solicitor at a special hearing in connection with the
Decision and Order. Labor organizations made similar requests. A
hearing was held at the United States Department of Labor, in
Washington, D.C., on March 6, 1974, to ascertain the nature of the
review requested and to hear the contentions of interested persons
and parties.
At the March 6, 1974 hearing, Counsel for ESA stated that when
the Board hearing of July 27, 1973 was held prior to issuance of
the Decision and Order, he [*] assumed [*] that if the Board agreed
that the disputed activities were subject to the Act, the
predetermined wage rates set forth in the contract specifications
would be the rates or classes of rates applicable to such
activities as provided in 29 CFR 5.5(a). [EMPHASIS IN ORIGINAL]
"Consequently," Counsel for ESA stated, "the parties did not
present argument on the issue of the applicable rates per se."
The Labor organizations have taken the same view. [2]
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[3] Upon consideration of prehearing statements and those made
orally at the hearing of March 6, 1974, the Board finds that the
subject of classifications with ensuing rates of pay was indeed a
part of the July 27, 1973 hearing germane to the issue of liability
presented for resolution. /FN1/
The matters raised at the March 6, 1974 hearing have been
fully considered in the Board's September 14, 197[3] decision, WAB
73-07. That decision also reviews the safeguards against [3]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
/FN1/It was suggested at the July 27, 1973 hearing and it
is indeed a serious contention that once it is determined
that the prestressed concrete pipe sections are being
fabricated on the project site, the employer should
[[9][10]] use wage rates of, for example, iron workers
for inserting reinforcing rods, carpenters for certain
form work, laborers for various types of unskilled labor,
operating engineers for handling and moving equipment
usually assigned to operating engineers, and since there
is a considerable amount of concrete and cement work, the
usual assignments should also be made to cement masons
and other crafts as if the work were performed under the
conventional construction option. Decision, WAB 73-07,
(Sept. 14, 1973), [pp. 9-10].
Petitioners had requested ESA to establish an appropriate
schedule as covered work only to be told at the time that the work
was not covered. [3]
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[4] abuse in this kind of a situation. The Decision and Order of
the Wage Appeals Board in WAB 73-07 is reaffirmed. /FN2/
Oscar S. Smith, Chairman
Stuart Rothman, Member
Clarence D. Barker, Member [4]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
/FN2/ In the Order in that case, the Board stated:
4. The Contract specifications gave this contractor and
his subcontractor the election to prosecute the work by
(a) traditional construction means using concrete form
work and pouring in place, or (b) by using a changed
technology of fabricating prestressed concrete pipe in
20-feet sections 17-feet in diameter, and weighing 150
tons per section. The contractor in electing to
prosecute the work by a process and means different in
nature from the more traditional in place construction
methods did not violate the contract provisions by paying
rates prevailing for such work done under option (b).
The bargained rates under the circumstances in this area
constitute the prevailing rates for the plant fabrication
work at this time. . . . WAB 73-07, p. 13, item 4.
And the Board further found,
. . . . There are no other wage rates for this work in
this area and these rates have in fact been paid in the
past in the locality for this type of work. WAB 73-07,
p. 13, item 3.
The Board finds that the last sentence of item 4 as quoted above
should more appropriately read:
The bargained rates under the circumstances in this area
constitute the prevailing rates for work performed under
option (b) at this time.
And this change is made in Decision WAB 73-07. [4]
