CCASE:
CARABETTA ENTERPRISES, INC.
DDATE:
19760130
TTEXT:
~1
[1] UNITED STATES OF AMERICA
UNITED STATES DEPARTMENT OF LABOR
DECISIONS AND ORDERS OF THE WAGE APPEALS BOARD
IN THE MATTER OF
CARABETTA ENTERPRISES, INC. WAGE APPEALS BOARD
No. 017-44134LDP, 017-44135LDP, CASE NOS. 74-04
Bella Vista Projects I, II, and 74-04A
New Haven, Connecticut Dated: January 30, 1976
Carabetta Enterprises, Inc.
and CRW Systems, Inc.
Petitioners
Appearances:
David E. Blum, Esq.,
Kennelly, Blum and Wall,
Washington, D.C.
for the Petitioners
George E. Rivers, Esq.,
Counsel for Construction
Wage Standards
for U. S. Department of Labor
DECISION AND ORDER OF THE BOARD
This is a sequel to the Board's decision and order in
Carabetta Enterprises, Inc., WAB Case No. 74-04, decided [1]
~2
[2] January 28, 1975, a case which has a way of returning to the Board
for the consideration of matters the Board believed it had decided.
In its January 28, 1975 decision the Board reached the
following conclusions and entered the following order:
The Petitioner has made much of the fact that the
Joint Board for the Settlement of Jurisdictional Disputes
made a determination on the Bella Vista Project in favor
of the Ironworkers at a time when only the Ironworkers
were bound by the Joint Board. The Labor Department says
that in the end, after independent investigation, it made
its determination dehors the Joint Board's determination.
But to the extent that the Petitioners call the Joint
Board determination a foul because the Carpenters were
out of Joint Board compliance when it was made, the
Petitioner's claim that a new area practice was
established when the Carpenters could do what they wanted
without accounting in a Joint Board proceeding, is also
some kind of curve.
Petitioner Carabetta Enterprises concedes that under
existing local practice as it understands it, some of the
work in question should have been done at ironworkers
rates. It is prepared to make such back payments.
Petitioner further recognizes and stated that on other
new undertakings of the same kind it would use a
composite crew. But Petitioner takes the position that
the Board should establish a new prevailing practice --
that the disputed work is exclusively carpenter's work --
thus permitting a rate of pay lower than the ironworkers
rate prevailing in the New Haven locality for all the
disputed work. The Department of Labor takes the
position that the area prevailing practice is for the
work in question to be done at ironworkers' rates. [2]
~3
[3] Because the Department of Labor and the Petitioner
espouse such divergent theories, the Board assumes a duty
to structure an approach to this matter based on a
renewed investigation, although it believes that in these
kinds of cases, these were matters for the contracting
agency to have carefully analyzed in advance as a part of
its design for all "operations breakthrough". The Board
accordingly reaches the following result:
1. The Board is of the opinion that the record as
submitted may be incomplete in respect to local
prevailing practice.
2. A renewed investigation is required to test whether
the initial survey was adequate and correct.
3. In determining local area practice all precast
concrete floor slab and wall work (not including precast
wall panels bolted or welded to structural frames or set
as trim pieces in mason[]ry walls) undertaken in the New
Haven area prior to the date Carabetta commenced erecting
precast walls and floor slabs at Bella Vista should be
taken into account.
4. Where composite crews were used, this information to
the fullest extent feasible should include the craft
composition of the crew, and the specific assignments to
each member of the crew.
5. This information can and should be obtained and
supplied to the Labor Department by the parties to this
proceeding for evaluation and then, if needed, by
supplemental investigation by the Department.
6. As to back pay required to be paid to employees
engaged on the Bella Vista project after reinvestigation
and confirmation on an adjustment of the Labor
Department's determination of local area practice, the
Board is of the opinion that a key item here is the
Company records. All records that go to the time
distribution of work assignments of individual employees
here involved should be made available to the Department
by the Company. [3]
~4
[4] Hopefully, such access to the Company records should
make arbitrary formulae unnecessary. However, if records
are inadequate, or refuted by other evidence we believe
some percentage formulae such as here proposed by the
Assistant Administrator is an appropriate method.
ORDER
1. The Petitioners herein and the parties to this
proceeding are requested to submit to the Assistant
Administrator of the Wage and Hour Division within 20
days from the date hereof such detailed information as
they possess or can obtain in respect to the craft
classifications of employees engaged on precast concrete
floor and wall work in the New Haven locality prior to
the Bella Vista project. Where composite crews were
used, this information, to the fullest extent feasible
should include the craft composition of the crew, and the
specific assignments to each member of the crew.
2. The Assistant Administrator shall evaluate all
information obtained under 1 above, conduct any further
investigation he deems necessary within 45 days from the
date of this order and advise Petitioners as to his
conclusions in respect to the prevailing locality
practice in work assignments prior to the date
Petitioners commenced setting precast at Bella Vista.
The Assistant Administrator should see to it that all
parties proceed expeditiously.
3. Petitioner shall cooperate fully in the computation
of any back payment of wages that may be due employees
based on Company records and information by applying the
locality prevailing work assignments practices as found
by the Administrator under 2 above. In the event the
records and information submitted by Petitioner are
inadequate to support such computation, the Assistant
Administrator shall develop and use a formula as may be
warranted by the information developed under 1 and 2
above in accordance with applicable law and practice of
the Department of Labor under its responsibilities and
under Reorganization Plan 14. [4]
~5
[5] 4. This matter is returned to the Administrator for
resolution in the manner above prescribed. The Board
will retain jurisdiction of the Petition during the
carrying out of this order.
* * *
Petitioner's motion for reconsideration was denied on June 27,
1975.
Between the date of the initial decision, January 28, 1975,
and July 17, 1975, Petitioner apparently wrote a number of letters
to this Board protesting ESA procedures in handling the directed
survey. These letters discussed again the merits of Petitioner's
position. The practice understood by all parties in this case was
that each party or interested person would serve not only the
Board's Executive Secretary but each person named on a schedule of
inter[e]sted parties. To conserve time, service was to be made on
the members of the Board at their individual addresses. Among such
letters sent by the Petitioner were letters dated March 28, 1975,
May 15, 1975, and apparently July 17, 1975. In some instances
letters sent by Petitioner did not reach the Executive Secretary.
In the case of the July 17, 1975 letter which is of particular
interest, the Petitioner did not furnish the Board members with a
copy of an ESA order dated July 11, 1975 which was referred to in
that letter. [5]
~6
[6] Neither the letter of May 28, 1975 or May 15,
1975, which were received by the Board members, had an
authenticated, dated and required certificate of service signed by
a responsible person on behalf of the Petitioner. In the case of
the July 17th letter, which was served upon the Board's Executive
Secretary, the same is true.
The Petitioner's July 17 letter stated in its first paragraph:
This is with reference to the Board's denial of
Petitioner's request that it be provided with a copy of
the Ironworkers' submission in this matter, as well as a
copy of the written work representing the Prevailing
Practice Survey which the Board directed on January 28,
1974 to be conducted by the Wage and Hour Division. The
decision of the Wage and Hour Division dated July 11,
reflects the conclusions of the Wage and Hour Division
with respect to that Prevailing Practice Survey.
Although Petitioner's July 17 letter refers to a decision
of the ESA dated July 11, 1975, no precise identification of that
decision was made. As noted, a copy of the decision was not
attached to the letter. The Board does not receive and there is no
requirement that ESA furnish the Board with its decisions after a
Board order or remand. The Board concluded that the order to which
petitioner referred had something further to do with the
Petitioner's request to be given the [6]
~7
[7] Ironworkers survey which was the stated purpose of the letter.
Under these circumstances the Board entered the following
order on July 30, 1975:
The Petitioner's letter request for reconsideration has
been fully considered and is hereby denied. Furthermore,
the Board hereby divests itself of the jurisdiction it
retained in this matter without prejudice to any party to
file a petition with the Board under applicable rules
concerning ESA's final decision with respect to the
prevailing practice in work assignments for the disputed
work or with respect to any back pay matters.
The Petitioner continued to write letters to the Board of its
desire for a final decision of the Board. It sought a reassessment
of ESA's decision of July 11, 1975, on the misclassification issue,
while withholding payroll data and full cooperation on the back pay
issue until it could get a reassessment by this Board of the
merits of Petitioner's claim.
Despite the Board's declination of further jurisdiction of the
original matter by its order of July 30, 1975, Petitioner has
insisted that it did not want to have this matter considered on the
basis of a new petition but rather wanted a "final order" in the
original decision in WAB Case No. 7[7]-04 decided January 28,
1975.[7]
~8
[8] Under these circumstances, the Board on its own volition
scheduled a hearing on December 1, 1975 to ascertain the precise
position of the parties at this time. In the light of that hearing
the Board views the current posture of this matter under WAB Case
Nos. 74-04 and 74-04A in the following way: It will consider
Petitioner's several requests and its petition in WAB Case No.
74-04A as a motion for reconsideration of the order declining
further jurisdiction of WAB Case No. 74-04 (which motion is granted
and here considered) and also as a hearing upon the petition in WAB
Case No. 74-04A. The Board sees no difference in the substance of
the two matters and both will be considered and disposed of
together.
The Petitioner claims that it was entitled to have the ESA
deliver directly to its counsel a submittal made to the ESA by the
Ironworkers as a part of the directed survey. Such surveys are
conducted by ESA pursuant to normal practices unless directed by
the Board to follow special procedures. The ESA has repeatedly and
in writing offered to make the requested Ironworkers material
available to the Petitioner for inspection. [8]
~9
[9] This is the long established and traditional way in which these
surveys are conducted and information made available. Under these
circumstances, we see nothing prejudicial to the Petitioner.
In its initial decision of January 28, 1975, the Board stated:
The Wage Appeals Board also adds something that is worth
restating. The determinations of the Secretary of Labor
in the administration of the Davis-Bacon and related Acts
are not subject to judicial review under long established
government procurement principles. This has long been
known and has become an accepted part of Davis-Bacon
practice. This exclusion from judicial review is whole.
Because of this, it is important that the Department of
Labor exercise adequate precaution to see to it that
everyone doing business with the Government has a fair
chance to see the basis upon which Davis-Bacon wage
determinations, classifications, and enforcement matters
are made. This Board, however, will not condone or
participate in end runs to circumvent a speedy, fair, and
efficient administration of the Act by the contractors,
sponsors, administering agencies and even by the
Department of Labor's administering agencies.
It is for this reason that the Board seeks full precautions
that parties appearing before it are given fullest consideration
when they raise questions of fair play. However in this case the
Board detects, not an absence of fair play by the ESA in making
available relevant documents, but a conceived distraction by the
Petitioner from the main [9]
~10
[10] line merits of a proceeding to enforce the Davis-Bacon Act.
The Petitioner claims that ESA is required to turn over to it
"all work done to date by the Wage and Hour Division in this
matter." We do not agree, inasmuch as the ESA decision of July 11,
1975 says it all. This decision was examined by the Board for the
first time at the December 1, 1975 hearing.
The Petitioner claims in its post hearing statement that the
Board ought not to decide matters pertaining to the merits of this
case without prior consultation with the Department of Housing and
Urban Development's "Operation Breakthrough" specialists. HUD has
been an interested party and has had full opportunity to make its
presentation to the Board. This matter was discussed in our
January 28 decision. HUD specialists seeking to achieve
construction savings through lower labor costs cannot blithely
misclassify established work or determine the assignment or work
between crafts in Connecticut. One of the commonest methods of
evading the application of the Davis-Bacon Act is by
misclassification of work. Dressing an old practice in a new
label does not change the application of the Davis-Bacon Act.
These are matters [10]
~11
[11] which an administering agency must face
at the time it first considers whether a new procedure is in fact
a true change in technology justifying new work classifications on
whether it is only a misclassification of work in the particular
locality. These are matters which should be discussed in advance
with the appropriate interested persons including the Department of
Labor.
Cutting through the post decision letter writing on the
procedures of the directed survey which the Board concludes have
not been prejudicial to Petitioner, the relevant facts are simple,
straightforward, and essentially undisputed.
1. At a time when the Carpenters were out of compliance with
the requirements of the National Joint Board for the Determination
of Jurisdictional Disputes, the Carpenters took certain work from
Carabetta Enterprises, Inc., in the New Haven, Connecticut area.
This disputed work had been performed by Ironworkers. Petitioner's
assignment reached the National Joint Board for resolution. It
decided that under national trade practice the work was
Ironworkers' work. [11]
~12
[12] 2. The ESA also concluded that the work in question was in
fact Ironworkers['] work in the New Haven area. By giving the work
to other crafts including the carpenters there had been
misclassification in violation of Davis-Bacon Act principles. ESA
did not accept the National Joint Board decision, ex cathedra, but
only as an affirmation of both national and local fact.
3. The ESA concluded that there was no local practice which
created a probative situation warranting the conclusion that the
traditional classification of the disputed work as Ironworkers'
work did not apply in the New Haven area. The fact that the only
other Operation Breakthrough-type housing construction, the
Blakeslee project, followed the traditional classification of the
work as Ironworkers' work only confirmed the ESA's knowledge of
this kind of work assignment.
Petitioner had made and has made no factual showing in
support of its original petition. It was out of an abundance of
caution that Petitioner was given a second opportunity to make such
a showing in a recheck survey.
4. The Board in its January 28, 1975 decision rejected the
claim that Carabetta, HUD, and project in [12]
~13
[13] question, Bella Vista, when called to account in enforcement
proceedings could in effect establish a new local practice by reason of
Carabetta's assignment contrary to past practice. The Board noted that a
local practice must be based on experience in the industry prior to the
issuance of the wage determination in dispute, the pivotal point in
time being the time when the job goes out for bids with the
appropriate wage rates (and work classifications) in the bid
documents.
5. The Petitioner as the moving party has an initial burden
of supporting its contention with factual data that prior to the
advertising for bids there was a practice, or at least a
discernable pattern, that work of the type in question was accepted
in the community as different from the traditional practice among
the crafts and that the work in question was not done by
Ironworkers. This it has failed to do utterly. We discern no
attempt to do so.
6. The Petitioner has produced nothing factual to overcome a
presumption of administrative competence and expertise under the
circumstances. This is not a case in which a petitioner has made
a colorable showing that the decision of the ESA could have been in
error on the facts [13]
~14
[14] or in principle under the Davis-Bacon
Act. Petitioner admits to misclassification of Ironworkers in a
number of instances. The Board concludes that Carabetta
Enterprises, Inc., was able to make a reassignment to carpenters
only at a time when the Carpenters were out of compliance with the
determination of the National Joint Board. Out of such stuff local
and traditional practices are not changed.
7. Although the additional information was not necessary to
the disposition of this case by ESA or by this Board, the
International Association of Bridge, Structural and Ornamental
Ironworkers (AFL-CIO) submitted data which bolsters and confirms
the initial ESA decision that work of the kind in question has
traditionally been performed by the Ironworkers craft in the New
Haven area. The Ironworkers did what the Board asked the parties
to do in connection with the survey. No other craft or the
Petitioner submitted additional information to show that work of
the nature in question was not traditionally performed by
Ironworkers. The Board is unable to find or conclude on the basis
of anything submitted by the Petitioner that the [14]
~15
[15] same practices did not pertain to work related to housing
projects of the type in question.
9. There is room in this kind of situation for all interested
local parties to reach an understanding concerning the use of
composite crews. This in no way obviates the basic application of
the Davis-Bacon Act to the work in question on the basis of
appropriate classification in the absence of such an all party
understanding.
* * *
The Board has, in effect, been confronted in this matter with a
dispute that looks very much like a jurisdictional dispute under
conditions existing in the New Haven area. The Board has said that
it will try its best to avoid getting into that kind of situation.
Hopefully, such matters will be discussed and resolved elsewhere.
But the Board will do what it has to do by way of decision to
maintain a uniform and consistent administration of the Davis-Bacon
Act. This is particularly necessary where government agencies are
losing sight of the central theme that there must be a coordination
of enforcement and administration under Reorganization Plan No. 14
of 1950 (5 U.S.C. Appendix). [15]
~16
[16] ORDER
Upon consideration of the several submissions made by the
parties and interested persons and matters discussed at the hearing
of December 1, 1975:
The ESA did not err in its initial decision finding the
disputed work to be the work of Ironworkers. The ESA order is
internally consistent, sufficiently specific, logical in result and
supported by substantial evidence, all the evidence there is in the
case. The petition filed by Carabetta Enterprises, Inc., which was
the subject of WAB Case No. 74-04 and the petition in WAB 74-04A
are hereby dismissed.
(s) OSCAR S. SMITH, Chairman
(s) STUART ROTHMAN, Member
(s) CLARENCE D. BARKER, Member [16]
