Litton Bionetics, Inc., WAB No. 74-05 (II) (WAB June 24, 1975)
CCASE:
LITTON BIONETICS INC.
DDATE:
19750624
TTEXT:
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[1] UNITED STATES DEPARTMENT OF LABOR
WAGE APPEALS BOARD
WASHINGTON, D. C.
IN THE MATTER OF
Petition for Review by the Wage Wage Appeals Board
Appeals Board of Wage Determination
74-MD-129, dated August 2, 1974, Case No. 74-05 (II)
applicable to the construction of
the National Cancer Institute Contract Dated: June 24, 1975
No. 1-CO-25423 with Litton Bionetics
Inc., Bethesda, MD
DECISION AND ORDER ON COUNSEL FOR THE
SOLICITOR'S MOTION DATED MAY 5, 1975 TO
CLARIFY THE BOARD'S ORDER OF MARCH 20, 1975
The Department of Labor's May 5, 1975 motion for clarification
brings to the Board for the second time a request that the Board
reconsider its decision in WAB Case No. 74-05, Fort Detrick,
Frederick County, Maryland, Litton B[i]onetics, petitioner.
Although the Labor Department's motion requests clarification,
the Board is asked to reverse its decision (1) to either let the
last disputed survey stand without ordering a new one or (2) to
include the Eastalco $84,000,000 aluminum expansion [1]
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[2] project undertaken by Bechtel Corporation in the survey that the
Board ordered on May 20, 1975. The inclusion or exclusion of the Bechtel
project was the issue raised by the petitioner when in 1974 the ESA
included for the first time rates paid for the major construction
or expansion of this aluminum plant. It had been represented by
petitioner that no contractor that is a part of the organization of
the construction industry in Frederick County had been employed
upon the basic construction or expansion of this plant.
The Building and Construction Trades Department (AFL-CIO)
filed a similar substantive motion on April 2, 1975 which was
denied. The Board noted that no information or arguments had been
advanced by the moving party, the petitioner or the Labor
Department that had not been considered before the decision and
order of March 20, 1975. Although the Labor Department had full
opportunity to respond to that motion and voice the matters it
now raises, it did not do so. It has offered no explanation
why not.
The Board could, perhaps should, dismiss this latest motion as
highly dilatory in a case in which the Labor Department has no
excuse to be dilatory. It will not. The Board will overlook
procrastination this time and see what the Counsel for the [2]
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[3] Solicitor and the Employment Standard[s] Administration have to
say. /FN1/
Frederick County has been the subject of several surveys
because there has been no clear pattern as to the nature or the
amount of the wage rates that predominate there. Counsel for the
Solicitor submits that the Board's March 20, 1975 decision was
based on an erroneous assumption that the Board came up with in
deciding that the [c]onstruction of the basic Eastalco aluminum
reduction plant had been "historically excluded from surveys of
building construction in the county" and "based on the information
provided by the Administrator this was not a correct assumption."
The Counsel for the Solicitor avoids tenses, past, present and
future in this claim. If there was wrong assumption based upon
"information provided by the Administrator" such information,
whatever it was, was not provided the Board. The Board has
carefully reviewed this matter and has concluded that it was told
at the hearing that the Eastalco reduction plant, [3]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
/FN1/ In future situations the Board will not take as lenient an
approach to unreasonable unexplained delays by the Labor
Department. [3]
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[4] which is several years old, had been excluded from all previous
surveys. The Board did not assume, it was told.
The factual basis upon which the Board is asked to reverse
itself because it erroneously assumed the exclusion of the basic
construction of the aluminum plant or its expansion included in
past surveys is equally obfuscatory. Counsel for the Solicitor
apparently refers to information submitted to him after the
decision of March 10, 1975. He states that the ESA special 1973
survey included "data from a construction project at the Eastalco
plant." Ferreting out the project, because the Labor Department
did identify it in its motion for clarification, it turns out to be
one for air-conditioning a gatehouse, a rehabilitation project much
like the Fort Detrick rehabilitation project, costing $20,000 and
using five carpenters and one plumber, a far cry from ESA's failure
over a several year period to include the primary construction of
the aluminum reduction plant or its major expansions undertaken by
companies such as Bechtel Corporation. Instead of supporting the
ESA position it only h[e]ightens the ESA past practice of including [4]
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[5] this kind of building rehabilitation project and excluding
the major aluminum reduction plant itself.
In its decision of March 20, 1975, the Board stated,
As the Board has said on many occasions, under
Davis-Bacon Act principles each case on review before the
Board must be determined on the precise pertinent facts
at hand in the locality at the time. The Counsel for the
Solicitor and the ESA, U.S. Department of Labor know this
from many other cases that have been brought to the
Board.
Counsel for the Solicitor stated at the hearing, in its
prehearing statement, and again in support of its motion that it is
not the practice of the ESA to exclude industrial building projects
when conducting general building surveys. In this case, the Board
has not directed the ESA to change what it says it has been doing
elsewhere. Such general practices in the air were not before us.
We were deciding a definite case in which a petitioner believed the
ESA to be in error. In the event there is protest concerning practices
elsewhere, each case must upon petition properly brought, be [5]
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[6] considered on the facts at hand in the particular
locality at the time in question.
The Labor Department in its motion has brought forward nothing
of substantial importance that would justify a reversal of the
Board's March 20, 1975 decision. The Board has concluded on the
basis o[f] the statements made by the Counsel for the Solicitor on
behalf of the ESA that the construction of the aluminum reduction
plant at Buckey[]stown in Frederick County, Maryland, or its major
modifications or expansion has not been included in ESA wage
pre-determination before 1974. The ESA has not submitted any
explanation. The Board has not directed the ESA to change that
practice for the purpose of determining the appropriate wage rates
for the Fort Detrick Rehabilitation projects of the National Cancer
Institute. We go no further in our March 20, 1975 decision.
In its March 20, 1975 Order, the Board directed the ESA to
select a fair and representative base period (not less than one
year) for its next survey in which to consider the total number of
employees working on all general building construction. The
Counsel for the Solicitor states, "In large urban areas a survey of
all projects completed within the prior [6]
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[7] [year] quickly become overwhelming," but he further states that in
1974 the Frederick County survey included all projects completed within
the current year. He does not tell us whether he considers Frederick
County to be a large urban area.
We see no reason to modify our order on this matter directing
a survey based upon a fair and representative period of not less
than one year. The last survey covered the current year period.
The motion is dismissed.
SO ORDERED:
(s) Oscar S. Smith, Chairman
(s) Stuart Rothman, Member
(s) Clarence D. Barker, Member
