CCASE:
JAHNCKE SERVICE, INC.
DDATE:
19740108
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
Federal Aid Highway Project No. WAGE APPEALS BOARD
I-95-1(30)15 Ct. 1, Camden County,
Georgia; Jahncke Service, Inc., Case No. 73-10
and T. L. James & Co., Inc. (a Joint
Venture), Contractor Dated: January 18, 1974
Jahncke Service, Inc., and T. L. James
& Co., Inc. (a Joint Venture)
Ruston, Louisiana,
PETITIONER
APPEARANCES:
Howard S. Linzy, Esquire,
New Orleans, Louisiana
for the Petitioner
Mr. C. S. Benton, Chief Engineer,
Jahncke Service, Inc., and T. L. James
& Co., Inc. (a Joint Venture),
Ruston, Louisiana
George E. Rivers, Esquire,
Counsel for Construction Wage Standards,
Office of the Solicitor and Counsel for
the Assistant Administrator, W&H,
United States Department of Labor
BEFORE: Oscar S. Smith, Chairman,
Wage Appeals Board; and
Stuart Rothman and
Clarence D. Barker, Members [1]
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[2] DECISION AND ORDER
The Petitioner, Jahncke Service, Inc., and T. L. James & Co.,
a Louisiana based Joint Venture, contracted with the Georgia State
Highway Department in August, 1971, to construct 6.611 miles of
grading and one bridge ln Camden County, Georgia on Interstate 95
between Jacksonville, Florida and Brunswick, Georgia at an
approximate cost of $8,000,000. /FN1/
The issue in this case is whether John O. Long, who was
employed by petitioner as a crane operator from March 8 to May 7,
1971 was misclassified and paid less than the required Davis-Bacon
rate. The question turns on whether Mr. Long was properly
classified as a crane operator under the Highway Schedule or rates
or whether he should have been classed under the Dredging schedule
or rates. The case is here because the "Northwest" No. 8 crane,
tracks and all, that Mr. Long operated was on a barge in the White
Oak Creek. Mr. Long believed that he was therefore entitled to the
rate for crane operators on dipper and clamshell dredges. The
Employment Standards Administration agreed and directed that for
the entire period of his employment, Mr. Long should have been paid
$4.40 per hour, a crane man's rate found under the dipper and
clamshell dredge schedule rather than the minimum rate of $3.00 for
a craneman under the highway schedule. Jahncke-James had paid [2]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
/FN1/ This case may be cited as the Jahncke-James Highway-Dredging
Project, Camden County, Georgia, WAB 73-10. [2]
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[3] over the minimum highway schedule but less than the dredge rate
claimed by Long. The Petitioner appealed the Employment Standards
Administration's decision to this Board.
The contract specifications contained Davis-Bacon Act wage
predetermination Decision No. AM-473 issued by the Department of
Labor. This included a schedule of classifications and
corresponding hourly wage rates for "Highway Construction." Under
the heading "Power Equipment Operators" was the classification of
operators of "Cranes, derricks and draglines" at an hourly rate of
$3.00. Wage Predetermination No. AM-473 8180 included
classifications and hourly wage rates and fringe benefits payments
for dredging under each of three headings: "Hydraulic Dredges 20
and Over"; "Hydraulic Dredges under 20"; and "Dipper and Clamshell
Dredges" with the classification of "Cranemen" at $4.40 per hour
plus fringe benefits of 40 cents for a total of $4.80 per hour.
During the two months period that Mr. Long was employed, Mr.
Long's time, according to both Petitioner and Long, was spent in
(1) driving sheet piling at White Oak Creek (2) loading pipe onto
his barge and transporting it to an access channel where he
unloaded and stockpiled for the dredges (3) waiting either for a
boat and crew to move his barge or because the barge was
inaccessible due to tide fluctuations and (4) some miscellaneous
work. He did deepen a boat slip on private property for use in the
construction but he moved no pay dirt under the dredging
specifications. [3]
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[4] The Wage Appeals Board hearing on October 31, 1973, did not
elicit certain relevant information the Wage Appeals Board thought
could be pertinent. Accordingly, it addressed the following
inquiry to the parties:
At the hearing Or October 31, 1973, an inquiry was made
concerning the nature of the service performed by the
crane and barge on which Mr. Long worked for the
hydraulic end dipper and clamshell dredges. The reply
was that the crane and barge serviced the "Job" but not
the dredges; that the crane and barge did not bring pipe
and other materials [*] directly [*] to the dredges.
[*Emphasis in original*] On the other hand Counsel for
the ESA called attention to some information in the
record that over 60% of Mr. Long's time was spent on
dredging work, although dredging work was not clearly
identified.
Please inform us precisely what work the crane and barge
did arising out of or closely related to the work
performed by the dredges. If such work was performed,
please advise the percent of Mr. Long's time so spent,
and how the rest of his time was spent.
The Petitioner contends that Mr. Long was hired as a crane
operator subject to the highway schedule. The site of operations
on the approaches to White Oak Creek were extremely marshy and the
use of one similar crane had been lost in the muck. Long's Model
8 Northwest crane was driven onto a barge, remained tracked, and
was used from the barge. The sensible method of doing the work,
supporting the crane, and moving it from place to place, was by use
of a barge. The barge which was rented was equipped with spuds
which were put down at certain times for stability. The Petitioner
distinguishes as readily observable the equipment of a dipper and
clamshell [4]
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[5] dredge. The clamshell dredge is permanently mounted
on the barge, has no tracks or tracking mechanism, and
generally is a much larger piece of equipment. While the crane
operated by Long was not used for excavating or filling underwater
material pursuant to the specifications, Petitioner readily
concedes there were significant periods of time when Mr. Long's
crane "serviced the job" by handling, loading and moving pipe and
equipment for the hydraulic dredges in White Oak Creek and
unloading at points accessible to these dredges.
The Wage Appeals Board has considered the entire record
including the oral argument of October 31, 1973, the briefs and the
post-hearing responses to its inquiry concerning Mr. Long's work.
We are required in this case to reasonably resolve the ambiguity
insisted upon by the Petitioner that while Mr. Long "serviced the
job" he did not "service the dredges" in the sense that he
performed work classified under the dredging schedule. We are
satisfied, however, that in the case of a project calling for a
specification division devoted to substantial dredging requirements
and carrying wag rates from the dredging sector of the construction
industry, some of the work performed by Mr. Long is properly
classified under dredging work. Had Mr. Long's employment been
under a dredging subcontractor we believe he would have been paid
at some appropriate dredging rate for work performed from his
barge in handling, loading, moving and unloading pipe and other
materials and equipment for the dredges. [5]
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[6] This case is first one of fact; -- what kind of work did
Mr. Long do on the barge, highway work or dredging work.
Unfortunately neither the Employment Standards Administration nor
the Petitioner has structured their factual presentation to assist
the Board very much in getting a handle on the applicable rule of
decision. In his brief the Assistant Administrator states that "it
was the opinion of the compliance officer that they were performing
duties within the occupational title of derrick operator from the
dredging schedule." We do not necessarily agree but the derrick
operator class does appear in the hydraulic dredge schedule of
AM-473 at a rate of $4.43 plus 40 cents benefits or a total of
$4.83. Employment Standards Administration, however, did not use
the derrick operator rate but found that the rate to be paid to
Long was $4.40 plus 40 cents fringes or $4.40 total, a rate
borrowed from its dipper and clamshell dredge schedule.
The Petitioner showed enough to establish that Mr. Long was
not employed in dredging work 100% of his time. The fact that a
crane is on a barge does not automatically transfer the work from
the highway classification to the dredging classification. Under
the circumstances of this case work done on or at the shore as a
direct part of highway construction at White Oak Creek such as
driving sheet piling was properly considered highway work subject
to the highway classification. Similarly, the fact that Mr. Long's
crane in an incidental way and outside the specifications was used
to "dig out a channel to a boat slip would not transfer his
classification to the dredging schedule ipso facto." [6]
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[7] However, there were substantial periods of time when Mr. Long's
barge was waterborne for purposes of servicing the dredges with
equipment and materials.
Under the special fact situation here, the Board concludes
that there were material time periods during Mr. Long's two months
employment when his barge was waterborne to service the hydraulic
dredges. When Mr. Long was engaged in doing such "off shore' work
Mr. Long should have been paid an appropriate rate under the
dredging classifications.
This is just a small case even in terms of money involving the
partial misclassification of one employee. For the Petitioner to
take this matter to an appeal on an $8,000,000 job there is also a
matter of principle as to it. In each of these cases someone
thinks it is important to him. The Employment Standards
Administration as the appropriate agency of the U.S. Government
will have to look into this matter again in order to achieve a fair
and just result for all private citizens concerned.
ORDER
The Employment Standards Administration is directed, with the
assistance of the Georgia State Highway Department, to determine by
any reasonable means including the possibility of stipulation by
the parties, the amount of time during Mr. Long's employment (1)
when his barge was off shore for the purpose of servicing the
dredges with pipe and other materials, supplies or equipment and (2)
when Mr. Long was actually engaged along the shore in handling and [7]
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[8] loading pipe and other materials, supplies and equipment
in preparation to moving them by the barge to locations accessible
to the dredges. Mr. Long shall be paid for this work at an
appropriate wage classification under the dredging schedule of
rates and classifications to be determined by the Employment
Standards Administration. In determining the fittingness of the
rate to the work, Employment Standards Administration should
specifically note our above comment that the rate Mr. Long claimed
and Employment Standards Administration thought appropriate may be
the necessary rate but some other may be more fitting for this work
i.e., operation of derrick, as found by the compliance officer, in
the servicing of the hydraulic dredges. All other time worked by
Mr. Long shall be subJect to the highway schedule of classification
and rates. The Wage Appeals Board has assumed the good faith of
the Petitioner in this case and is not disposing of this case on
the basis of the employer's responsibility to keep adequate
records.
(s) Oscar S. Smith, Chairman
(s) Stuart Rothman, Member
(s) Clarence D. Barker, Member
