CCASE:
PREVAILING WAGE APPL. THREE CONST. V. M.A.R.T.A.
DDATE:
19751030
TTEXT:
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[1] UNITED STATES OF AMERICA
DEPARTMENT OF LABOR
DECISIONS AND ORDERS OF THE WAGE APPEALS BOARD
IN THE MATTER OF
The prevailing wage rates WAGE APPEALS BOARD
applicable to three construction CASE NO. 75-05
projects of the Metropolitan Rapid SECOND SUPPLEMENTAL
Transit Authority, Wage Decisions DECISION
Nos. 75-GA-159, 75-GA-160, and Dated: October 30, 1975
75-GA-161
Metropolitan Atlanta Rapid
Transit Authority
Petitioner
Georgia Highway Contractor's
Association, Inc.
Intervenor
North Georgia Building and
Construction Trades Council
Intervenor at the Atlanta
Hearing Upon Reconsideration
BEFORE: Oscar S. Smith, Chairman, Wage Appeals Board
and Stuart Rothman and Clarence D. Barker,
Members [1]
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[2] SECOND SUPPLEMENTAL DECISION AND ORDER
The Board's initial decision and order in this matter was
issued August 25, 1975. By reason of motions for reconsideration
filed by the United States Department of Labor and the Building and
Construction Trades Department AFL-CIO, a special hearing was held
in Atlanta, Georgia, on September 30, 1975. On October 16, 1975
the Board issued a supplemental decision and order with respect to
one of the two active projects before it, Project CE 540, a 4,000
foot segment of MARTA for earthwork and structures, Anderson Avenue
to Fairfield Place. It reserved for further discussion and Order
the other active project, CE 330, East Lake Drive to West Trinity
Place, another 4,000 foot segment of MARTA for earthwork and
structures including a 2900 foot cut and cover subway tunnel. This
second supplemental decision and order to the initial decision of
August 25, 1975 deals with Project CE 330. [2]
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[3] THE WORK IN CONTRACT CE 330, EARTHWORK AND
STRUCTURES EAST LAKE DRIVE TO TRINITY PLACE
Summaries of the work under Contract CE 330 are contained in
our initial decision of August 25, 1975 and in the October 16
supplement. More specifically, this 4000 foot section includes
1100 feet at-grade and 2900 feet of double box concrete subway. It
also includes the permanent closing of one existing street. It
passes through two streets which must be decked over for
maintenance of traffic throughout construction. The right of way
in CE 330 runs adjacent to the Georgia Railroad for a part of its
length and passes through a public park to be reconstructed under
this contract. Traffic must be maintained on the railroad.
Both the at-grade and the subway portions of CE 330 involve
all of the types of work in CE 540. Additionally, CE 330 includes
a large amount of street reconstruction (e.g., relocation of
utilities -- water, gas, sanitary lines, storm lines, telephone,
hydrants, pavement, sidewalks, curbs, striping, etc.), ground rails
and park playgrounds and landscaping. [3]
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[4] The double box subway portion of the work includes in
addition to the concrete structure interior subway lighting,
encasement of duct banks, a fire protection system, waterproofing
and damproofing, a ventilation system (e.g., two concrete fan rooms
with air shafts, doors, fans, ducts, acoustical treatment to air
shaft, louvers, dampers, etc.), electrical service and electrical
power including installation of distribution equipment and basic
electrical materials. The contract does not include track work.
The 2900 foot cut and cover subway section for a substantial
part follows the line of a ravine which lends itself in large part
to the grade and topographical requirements of the work. There are
a number of houses on or near the site of the work but it is not a
densely built up area.
The park must be maintained in service in some of its parts.
There is a swimming pool that must be kept operating. Access and
utility service must be maintained to the nearby homes during
construction. Traffic must be maintained including certain
detours. The street and park work is inseparable from the box
subway construction and all must be executed in a closely
coordinated fashion. /FN1/ [4]
??????????????????
/FN1/ On projects of this type as discussed in our August 25
decision the Board has excluded local sewer and paving rates. [4]
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[5] WAB Case No. 75-05, MARTA, has presented a variety of
difficult questions both in terms of analysis of basic Davis-Bacon
Act principles and in their practical application. One reason for
this is that all sides have laid claim to the existence of an
established and recognized "heavy" construction rate for the
Atlanta area. They then went ahead to justify that rate in their
own fashion. The existence of an identified intermediate "heavy"
rate schedule lying somewhere between the existing "building" rate
schedule and the existing "highway" rate schedules may be vaguely
perceived and poorly defined. Highway experience when applied to
other type work may involve misclassification of work practices
accepted for highways, but not valid for wage determination
purposes elsewhere. We do not wish to recount the discussion in
our initial August 25 decision concerning the conflict between the
parties as to what a "heavy~ rate in the Atlanta area should be.
But all parties remain in agreement that CE 330 is a "heavy" type
construction project and not a "building" type construction
project. As to this particular MARTA segment, isolated as it is
from other subway construction, the Board does not intend to go
behind the agreement of all local parties and the Federal
governmental agencies as well. [5]
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[6] A subway and rail rapid transit system has unique
characteristics, This was discussed in the August 25 decision, and
the Board does not wish to recount them. Until the first one comes
along in a metropolitan area, there is nothing quite like it in the
locality. Contract CE 330 is not a contract for highway work. A
subway and a rapid rail transit system is not a highway. Nor can
the Board conclude from an examination of the plans and
specifications used for bid purposes and from an observation of
the site of the work that the project CE 330 can be fairly
characterized as having predominate characteristics which under
industry practices in the Atlanta area would subsume all the
contract work under the "building and commercial" category.
But the contract work has significant portions of work which
are not commonplace in federally-aided highway work and in fact are
absent from such work in the Atlanta area, Nor should such
specified work be subsumed under existing classifications used for
"heavy" work that has not included this kind o? work under past
practice. There has been no evidence that such work is either
commonplace or in fact existent in any of the projects which the
parties could agree upon, or which the Board has directed, be [6]
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[7] included in making the wage predetermination for CE 540. The
only inference to be drawn from what the parties have claimed and
have not claimed is that work of the nature that has not been found
in significant portions in either highway type or so-called "heavy"
type construction is performed at the rates that prevail when such
work is performed on industrial and commercial work in the Atlanta
area.
AN ADJUSTMENT IN THE BOARD'S AUGUST 25 DECISION IN THE
METHOD OF DETERMINING THE APPROPRIATE WAGE
PREDETERMINATION FOR PROJECT CE 330 REQUIRING THE
INCLUSION OF WAGE RATES FOR ADDITIONAL TRADES AND CRAFTS
BASED UPON INDUSTRIAL AND COMMERCIAL EXPERIENCE
1. ESA should proceed with its survey recheck to ascertain the
wage predetermination for Project CE 540 in accordance with the
directions in our supplemental decision of October 16, 1975. On
the assumption ESA concludes the survey recheck yields a suitable
and sensible wage rate schedule for that project arrived at upon
realistic considerations, the same wage rate schedule for the
crafts involved or the same methodology for making the survey
check, should be used for Project CE 330, subject to the following
items 2 and 3.
2. As an integral part of the wage predetermination for Project CE
330, ESA should add the wage rates that prevail [7]
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[8] on industrial and commercial work in the Atlanta area for the trades
or crafts engaged on fire protection systems, ventilation systems
and electrical interior lighting, temporary light and power,
grounding, installation of distribution equipment and basic
electri[c]al material. If other work is encountered in the project
not normally or traditionally encountered in the so-called "heavy"
category of work upon which the CE 540 survey recheck is based, ESA
shall go to the industrial and commercial experience in the Atlanta
area for the appropriate wage rate for the craft, including all
laborers and mechanics.
3. The contracting agency shall be required to notify all bidders
by appropriate announcement prior to submission of bids.
4. Except as herein provided with respect to the adjustment in the
method of making the wage survey recheck based upon the Board's
directions as to CE 540 and the addition for CE 330 of additional
classifications and rates of pay based upon industrial and
commercial work, the Board's [8]
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[9] decision and order of August 25, 1975 as supplemented October 16,
1975 is unchanged.
SO ORDERED:
(s) Oscar S. Smith, Chairman
(s) Stuart Rothman, Member
(s) Clarence Do Barker, Member
