Metropolitan Atlanta Rapid Transit Authority, WAB No. 1975-05 (WAB Aug. 25, 1975)
CCASE:
THREE CONST. V. ATLANTA TRANSIT AUTHORITY
DDATE:
19750825
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
projects of the Metropolitan CASE NO. 75-05
Atlanta Rapid Transit Authority DECISION AND ORDER
Wage Decisions Nos. 75-GA-159,
75-GA-160, and 75-GA-161 Dated: August 25, 1975
Metropolitan Atlanta Rapid
Transit Authority
Petitioner
Georgia Highway Contractor's
Association, Inc.
Intervenor
Appearances:
Thompson Powers, Esq. and
Ronald S. Cooper, Esq.
Steptoe and Johnson
For Petitioner [1]
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[2] Appearances -- continued
Jeffery B. Trattner
Metropolitan Atlanta Rapid
Transit Authority
For Petitioner
George E. Rivers, Esq.
Council for Contract Labor Standards
For Employment Standards
Administration, U.S.
Department of Labor
Theodore A. Munter, Esq.
Assistant Chief Counsel
For Urban Mass Transit
Administration
Thomas X. Dunn, Esq.
Sherman, Dunn, Cohen and Leifer
For Building and Construction
Trades Department, AFL-CIO
George Caudelle
For North Georgia Building
Trades Council
David Daniel
For Associated Builders and
Contractors
Arthur Hintze
For Associated General Contractors
of America
BEFORE: Oscar S. Smith, Chairman, Wage Appeals Board and Stuart
Rothman and Clarence D. Barker, Members [2]
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[3] DECISION OF THE BOARD
Although there have been many federal assistance grants for
subway and rail rapid transit systems pursuant to the Urban Mass
Transportation Act of 1964, as amended, 49 U.S.C. Section 1609,
this case initially presents questions pertaining to the nature of
such work for project similarity purposes under the Davis-Bacon
Act. /FN1/
This proceeding is before the Board pursuant to Order No.
24-70, as amended, of the Secretary of Labor and the Rules of
Procedure of the Wage Appeals Board (29 CFR Part 7). The
petitioner is the Metropolitan Atlanta Rapid Transit Authority.
The Georgia Highway Contractor's Association, Inc. filed a petition
to intervene pursuant to Section 7.12 of the Board rules, subtitle
A of 29 CFR Part 7. The request was granted. A hearing was held
before the full Board on July 1, 1975. All interested persons were
given the opportunity to present [3]
???????????????????
/FN1/ This case may be cited as "MARTA, Atlanta, Georgia WAB Case
No. 75-05." [3]
~4
[4] their positions. Opportunity was also afforded until July 23,
1975 to file post-hearing statements.
Petitioner, Metropolitan Atlanta Rapid Transit Authority
(herein MARTA) challenges three wage predeterminations, Wage
Decisions Nos. 75-GA-159, 75-GA-160 and 75-GS-161 made by the
Assistant Administrator, Wage and Hour Division, U.S. Department of
Labor (herein ESA) as required by Section 13, the labor standards
provision of the Urban Mass Transportation Act of 1964, as amended,
49 U.S.C. Section 1609. /FN2/ These three determinations were to
apply to three segments of MARTA's subway and rail rapid transit
system. Receipt of bids and contract awards for these three
segments are said to be imminent. [4]
???????????????????
/FN2/ When specific federal assistance statutes are dependent upon
the United States Department of Labor for the incorporation of wage
predeterminations made under its Davis-Bacon Act functions, it is
the practice of the Board to refer to the controlling principles,
policies or rules as arising under the Davis-Bacon Act, unless the
related statute has different standards.
Applicable Statu[t]es and Regulations
The Davis-Bacon Act approved March 3, 1931, as amended
(40 U.S.C. 27[6]a, et seq. provides in pertinent part as
follows:
(a) The advertised specifications for every contract in
excess of $2,000, to which the United States or the
District of Columbia is a party, [4][FN2 CONTINUED ON PAGE 5]
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[5] for construction, alteration, and/or repair,
including painting and decorating, of public buildings or
public works of the United States or the District of
Columbia within the geographical limits of the States of
the Union, * * * and which requires or involves the
employment of mechanics and/or laborers shall contain a
provision stating the minimum wages to be paid various
classes of laborers and mechanics which shall be based
upon the wages that will be determined by the Secretary
of Labor to be prevailing for the corresponding classes
of laborers and mechanics employed on projects of a
character similar to the contract work in the city, town,
village, or other civil subdivision of the State in which
the work is to be performed, * * * and every contract
based upon these specifications shall contain a
stipulation that the contractor or his subcontractor
shall pay all mechanics and laborers employed directly
upon the site of the work, * * * the full amounts * * *
computed at wage rates not less than those stated in the
advertised specifications, regardless of any contractual
relationship which may be alleged to exist * * *.
The Urban Mass Transportation Act (49 U.S.C. [sec] 1609),
provides in pertinent part as follows:
(a) The Secretary [of Transportation] shall take such
action as may be necessary to insure that all laborers
and mechanics employed by contractors or subcontractors
in the performance of construction work financed with the
assistance of loans or grants under section 1602 of this
title shall be paid wages at rates not less than those
prevailing on similar construction in the locality as
determined by the Secretary of Labor in accordance with
the Davis-Bacon Act, as amended. The [5][FN2 CONTINUED
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ON PAGE 6][6] Secretary shall not approve any such loan
or grant without first obtaining adequate assurance that
required labor standards will be maintained upon the
construction work.
(b) The Secretary of Labor shall have, with respect to
the labor standards specified in subsection (a) of this
section, the authority and functions set forth in
Reorganization Plan Numbered 14 of 1950 (15 F.R. 3176; 64
Stat. 1267), and section 276c of Title 40.
Reorganization Plan No. 14 of 1950 (5 U.S.C. App., p. 242),
provides in pertinent part as follows:
LABOR STANDARDS ENFORCEMENT
In order to assure coordination of administration
and consistency of enforcement of the labor standards
provisions of each of the following Acts by the Federal
agencies responsible for the administration thereof, the
Secretary of Labor shall prescribe appropriate standards,
regulations, and procedures, which shall be observed by
these agencies, and cause to be made by the Department of
Labor such investigations, with respect to compliance
with and enforcement of such labor standards, as he deems
desirable, namely: (a) The Act of March 3, 1931 (46
Stat. 1494, Ch. 411), as amended [secs] 276a-276a-6 of
Title 4[]10] * * *. [END FN2 [6]
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The award of contracts for other phases of the MARTA system dependS
upon a variety of factors, some solved, some in the process of
being successfully solved, some only in the process of being
processed.
The three parts before the Board and ready for bidding are not
contiguous. /FN3/ They are part of a planned comprehensive rapid
rail, busway and subway system to serve the Atlanta metropolitan
area in two counties, Fulton and DeKalb. MARTA emphasizes the
greater length of the rapid rail lines, stating "only" ten miles
will be subway construction. When the system is completed MARTA
says it will consist of some 61 miles of rapid rail and busway
lines with 39 rapid rail stations and 2 busway stations. The
system will include the 10 miles of subway, 16.3 miles of aerial
trackage and 26.5 miles of at-grade trackage. Parking will be
provided for some 30,000 vehicles. [7]
???????????????????
/FN3/ The following are the major items of construction on each of
the three projects with indications of estimated quantities.
CW-540
Clearing and Grubbing, Removal of Miscellaneous
Facilities [--] 8.7 Acres
Excavation and Embankment 113,700 cu. yds. [7] [FN3
CONTINUED ON PAGE 8]
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[8] Concrete Retaining Walls with Reinforcing steel [--]
2,300 cu. yds. concrete [--] 110 tons Reinforcing Steel
Fencing with Gates [--] 8,660 lin. ft.
Storm Water Sewer and Drainage System with Manholes, Catch
Basins and Ditches [--] 650 lin. ft.
Grass Seeding and Landscaping
Underground Duct Banks [--] 4,850 lin. ft.
Aggregate Sub-base [--] 3,850 cu. yds.
CE-173
Mobilization
Site Work Clearing and Grubbing [--] Removal of Existing
Facilities [--] Restoration of Streets, 2,800 sq. yds.
Asphalt
Earthwork [--] 27,500 cu. yds.
Excavation [--] 8,000 cu. yds. Backfill
Structural [--] 120 Piles [--] 1,500 cu. yds. Concrete for
Underpass [--] 214 tons Steel [--] 2,900 cu. yds.
Concrete Retaining Walls
Grassing [--] 1.5 Acres [8][FN3 CONTINUED ON PAGE 9]
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[9] Drainage [--] Storm Water, 1,300 lin. ft. [--] Sanitary Sewer,
615 lin. ft.
Trackwork [--] New Track, 18,340 lin. ft. [--] Ballast, 100
tons [--] Track Removal, 7,800 lin. ft.
CE-330
Mobilization
Traffic Maintenance and Control
Clearing and Grubbing and Removal of Existing Facilities
11 Acres
Excavation [--] 101,500 cu. yds.
Backfill [--] 36,600 cu. yds.
Decking of Streets [--] 2,511 sq. yds.
Support and Maintain Facilities
Storm Water System and Drainage [--] 4,900 lin. ft.
Relocate Existing Sanitary Sewer and Water System
Restore Streets, Sidewalks, Curbs and Traffic Striping 800
tons Asphalt [9][FN3 CONTINUED ON PAGE 10] [10]
Fencing with Gates 2,640 lin. ft.
Concrete with Reinforcing Steel [--] 23,300 cu. yds. [--]
Concrete [--] 1,600 tons Steel
Dry Pipe Fire Protection System
Ventilation Shaft
Ducts for Electrical and Temporary Lighting System
Landscaping and Grassing 12.3 Acres [END FN3] [10]
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MARTA asks that the Department of Labor be directed to issue
separate wage determinations for Fulton and Dekalb Counties. MARTA
also challenges ESA's use of the new "environmental" projects, such
as water treatment and sewage disposal plants to determine project
similarity characteristics for wage predetermination purposes. It
challenges the use of such projects for similarity comparisons to
the planned MARTA system in its entirety and to the three parts if
they should be considered separately. MARTA strongly urges, on the
other hand, that there are numerous bridge and highway construction
projects which are in fact similar to the three segments and should
have been taken into account by ESA. MARTA believes [10]
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[11] the three challenged wage determinations which ESA found to
be at or near the rates paid for commercial or industrial building
construction resulted from a serious misapplication of the
Davis-Bacon Act criteria.
MARTA concludes it basic position in this case with the
following:
Unless these determinations are corrected, it is
estimated that the use of the wage rates they require
would increase the cost of the MARTA rapid rail system by
over $100,000,000. Obviously these rates would also have
a serious infla[]tionary impact on construction work in
the Metropolitan Atlanta Area.
* * *
The validity of the three challenged wage determinations turns
upon three considerations: (1) whether when ESA made a local wage
survey it correctly adopted as the test of "projects of a character
similar to the contract work" a number of water treatment and
sewage disposal plants to the exclusion of numerous bridge and
related highway projects; (2) whether ESA in its quest for project
"similarity" correctly laid only these water treatment and sewage
disposal plants alongside the entire planned MARTA system as
presently conceived and heralded; and (3) whether MARTA was correct
in concluding that these three contract segments, being a part of
the planned MARTA system were consequently similar in the nature of
their construction to the water treatment and sewage disposal
projects. [11]
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[12] As is often the case, both sides to a controversy use
common terminology to mean different things. Sometimes different
terminology is used to mean the same thing. A diligent review of
the facts is required, and one in which the postulations of both
sides must be given a hard look. This case cannot be decided by
the play on words both sides have used to characterize the
nature of the MARTA system and its parts as being "building," or as
"heavy" or as "highway" work. It will have to be decided upon the
substance of the situation exi[s]ting at the time this decision
must be made. It must be decided by laying that factual situation
alongside the Davis-Bacon Act's remedial purposes of preventing
certain mischiefs from occur[r]ing within the construction industry
in the locality at a particular time. What are those mischiefs
with regard to the planned MARTA system?
As the world changes -- as the world of commerce and industry
changes, in this case the construction industry, -- the basic
objectives of the Davis-Bacon Act will not change. The Act was
designed in the 1930's to protect laborers and mechanics in a
locality from the degeneration of achieved wage rate standards that
could [12]
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[13] come about from Federal programs aimed to assist
local construction. This is particularly an object, as was
the case in the 1930's and as is the case today, when unemployment
in the construction industry is high.
Each laborer or mechanic employed upon the site of work
covered by the Act is to be paid not less than the wage (and
fringes) determined by the Secretary of Labor to be prevailing for
the corresponding class of laborers and mechanics employed on
projects of a character similar to the contracted work. The
Davis-Bacon Act operates within the context and structure of the
building and construction industry. The Department of Labor must
so apply the Act in the fourth quarter of this century because that
is where we are today.
Although the "prevailing wage" concept that a fair wage is the
wage prevailing on projects of a character similar to the contract
work remains today the appropriate and viable formula under the
Act, the application of this formula to construction of a combined
subway and rapid rail transit system in the 1970's could not have
been in the forefront of the mind of Congress in framing the
statute. A metropolitan subway and rapid rail transit system
partakes of many things. It has a lineal projection like river
improvement programs or new canal construction. But subway [13]
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[14] and rail rapid transit construction can also be
concentrated within restricted contract limit lines. Stations
above and below ground are examples. A subway and a rapid rail
transit system will include not only many stations and structures
but much mechanical and electrical work normally associated with
building construction; another example is ventilation. When the
system is built in congested areas, planning, architectural,
engineering, and physical development problems take on new
dimensions.
* * *
It is not sufficient, in the face of a serious challenge, for
the administrative and legal offices within the Department of Labor
to simply open the book of the Standard Industrial Classification
Manual (SICM) (Office of Management and Budget, 1972) to where it
says "heavy construction" includes bridge, tunnel, and elevated
highway construction, subways, etc., and to let it go at
that./FN4/[14]
???????????????????
/FN4/ While SICM may be useful in many situations it cannot be
regarded as determinative of similarity in situations where
locality practices and locality definitions have not developed
around SICM. There is no contention in this case that the
industry, itself, has developed wage patterns around SICM. In
determining similarity the Board will look to the facts of each
situation in the locality and move to protect established locality
conditions irrespective of whether these fit within a neat SICM
pattern. [14]
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[15] For if that were to remain the basic premise upon which ESA
stakes its claim that MARTA as an "entity" will take the "heavy"
construction classification wage rates and that such rates are the
same or about the same as the Atlanta "building" and "commercial"
wage rates, it would surely lose for the organized "building"
segment of the industry in the Atlanta area the construction of any
part of the MARTA system. The reason for this is that if ESA
wants only to consider the entire planned MARTA system as an
entity, comparison of such a comprehensive system to a limited
number of water treatment and sewage disposal projects is far too
restrictive. A much wider variety of construction work would have
to be considered.
When the Assistant Administrator takes the one position that
MARTA's total subway and rapid rail transit system must be
considered at this time as an integrated whole (to the exclusion of
any other way to provide a sensible and workable rule), and that
the three contract segments under review must be measured and
adjudged as the same as building and commercial type construction,
it has placed all its eggs in the one basket that it can
satisfactorily sustain its position that by the meager use of
about 21 water treatment and sewage disposal contracts [15]
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[16] for projects constructed under the newly enacted environmental
protection programs it has proven that there has been a recent
metamorph[o]sis of construction normally classified as "heavy" in
the construction industry from the open shop highway classification
to the building classification.
ESA has informed the Board that until 1974 the so-called
"heavy" construction rate in the Atlanta metropolitan area was the
same as the highway rate. ESA says that it was in anticipation of
the coming along of such projects as MARTA's new subway and rapid
rail transit system that it undertook to see whether factual
conditions in the industry had changed enough to justify moving the
heavy rate out of its correlation to the highway rate and over into
the building rate. If the facts supported ESA, it would have made
a significant contribution to the maintenance of newly established
building wage standards in the Atlanta metropolitan area. If the
facts do not establish that "heavy" work (as that classification of
work has been understood and applied within the structure of the
construction industry in the Atlanta area) is now predominately
done at the same wage rates as building and commercial work in the
Atlanta area, a disaster will have resulted for the organized
building [16]
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[17] and commercial sector, employers and employees,
because under the thesis that the MARTA system "heavy work" is all
to be done at either the building construction rates or the highway
rates, it would have staked all and lost all. /FN5/ The facts have
not changed enough to justify the conclusion that the
classification of "heavy work" has in some inexplicable way swung
all the way from the highway side of the wage pendulum to the
building side. Nor do the facts justify such an extreme gamble.
* * *
It is equally important to understand the position of those
forces that support MARTA. This includes the Urban Mass Transit
Authority, the Georgia Highway Contractor's Association, Inc., the
American Road Builders Association, [17]
???????????????????
/FN5/ Footnote 1 on page 4 of the Assistant Administrator's July
10, 1975 statement states without qualification that "In the
Atlanta Metropolitan Area, the "building and the 'heavy' wage rates
are the same." However, a comparison of the decisions issued by
the Assistant Administrator on May 12, 1975 for MARTA contracts
here involved with the area determination issued for him for
"building" (a four county determination on May 2, 1975) reveals
that of 20 classifications common to both decisions 16 appear in
the MARTA decision at wage rates well below (in some cases as much
as $2.00 or $2.50 per hour) the rate for the same [*]
classification in the "building" [*] decision. [*Emphasis in
original*] [17]
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[18] the Associated General Contractors of America Inc., Georgia
Branch and the Associated Builders and Contractors. It is
crystal clear to these organizations that MARTA's subway and rapid
rail transit system is predominantly similar in construction to
highway work, plus the more specialized work of track laying.
MARTA and its supporters have approached the Board with
considerable confidence that in a contest with ESA as to whether
"heavy" work as understood in the industry in the Atlanta area is
performed at building construction rates or at highway rates, it
will establish that the bulk of such work, if not all, is performed
at the highway rates.
ESA recognizes that a large amount of highway work in the area
may be considered as "heavy"; perhaps in a context different from
its "one project, one entity" concept for MARTA, such work could be
considered "heavy" work. It counters that the projects of a nature
most similar to MARTA's subway and rapid rail transit system are
the water and sewage plants, classified nowadays as "environmental
projects" and undertaken in recent years pursuant to the Federal
Water Pollution Act amendments of 1961 with [18]
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[19] financial assistance of the Environmental Protection
Agency. /FN6/
The positions of both sides to this dispute interface on the
one point that the work on these three segments is properly
classified as "heavy" work in the local construction industry. To
ESA its position means that "heavy" work is to be classified at
building (or near building) rates. To MARTA, its position means
the work [19]
???????????????????
/FN6/ On this somewhat precarious approach in which the ESA puts
all its eggs in the one basket of water purification and sewer
disposal projects, it would be expected that the ESA would be in a
strong position to explain the formula by which it took a water
purification or sanitary disposal project and separated the work
into two parts: the number of employees on each one of these
projects who were assigned to the building structures part of the
development and the number of employees who were assigned to the
non-building structures part and were, therefore, considered as
employed on heavy construction and to be counted in the census of
employed engaged on heavy work at building rates. ESA stated at
the hearing that this is how ESA did it. In its brief ESA said, in
fact, the contractors on the water and sewer treatment projects in
question were specifically requested to submit wage data on the
"heavy" portion of the project only and not to submit wage data on
the "building" portion. The Board, believing that the techniques
used by ESA in so segregating employees by classification and by
number to be important, put the question straight to the ESA in a
request for a supplemental statement describing the formula used
in making the segre[g]ations and the computations. The question
was not answered. [19]
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[20] is to be classified at highway (or near) highway rates. This
situation, clear to each side, appears to be quite murky to the
Board. According to ESA the building rate is now the equivalent of
the "heavy" rate. According to MARTA the highway rate has been and
continues to be the equivalent of the same "heavy" construction
rate. In as much as things equal to the same thing are supposed to
be equal, if both parties were right, the wages paid on building
construction and on highway construction should be the same --
which is not the case. Obviously, something is wrong here.
One thing that is wrong is that although work may be described
as "heavy construction" the question must also be asked, "for what
purpose is it so described?" Work may be classified as heavy, as
in the Standard Industr[]ial Classification Manual, but the fact of
doing so does not make the heavy work subject to any particular
wage rate schedule. The usual purpose work is designated as
"heavy" construction is that the industry in the locality has in
one way or another, usually through negotiation, established labor
standards for such work, principally in wage rates and working
conditions, different from the established or the prevailing wage
rates for building or highway work, or some [20]
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[21] other classification of work, such as "marine" work. The "heavy"
rate may be lower. Sometimes it is higher than the building rate.
There may be a prevailing practice outside of negotiated situations
where a distinction in rates of pay between a building rate and a
heavy rate, or between a heavy rate and a highway rate, is
recognized.
The Board is of the view that when considering the application
of Davis-Bacon principles to a project the nature and size of
MARTA's planned subway and rapid rail transit system there is a
time and a place for all things under the program that will require
Davis-Bacon wage determinations. The Board concludes that for
purposes of achieving the objectives of the Davis-Bacon Act the
planned MARTA subway and rapid rail transit system may be
considered as being developed in construction stages. The three
segments now before the Board are in a first stage because there
has been no other MARTA line construction to this time. The Board
is satisfied that MARTA has not undertaken these three segments out
of concern to simply achieve a lower labor cost. MARTA's
development program, starting with the award of these first three
isolated projects is neither unreasonable in terms of application
of Davis-Bacon Act principles or atypical in [21]
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[22] connection with the planning and development of subway and
rapid rail transit facilities.
* * *
The Board, concluding that the ESA erred in determining that
the nature of these three segments is of a character similar to
work which the ESA in effect has characterized as of a
"building-heavy" nature, applies the foregoing overview to the
principal issue and the sub-issues raised by petitioner in the
following manner.
Should MARTA Determinations Be Issued on a Bi-county
Basis or Should There Be Separate Determinations For Each
of The Two Counties in Which the MARTA System is Located?
The MARTA system will traverse both Fulton and DeKalb
Counties. MARTA urges a separate determination for each county.
ESA, in its brief, says that in the Atlanta area it has sometimes
used five counties and sometimes four as a "locality" for wage
determination purposes. It says that "in the initial wage
determination for 'heavy' construction of November 1, 1974 ... the
basic five-county standard metropolitan statistical area was
included since this 'expanded' area has traditionally been viewed
as a single 'locality' for wage determination purposes." ESA
says also that its determination for highway rates in [22]
~23
[23] September 1974 covered four counties and that its determination
for building rates in February 1975 covered four counties. It
continues that its "wage determination for the MARTA project, which
included only two counties, simply reflected the locality in which
the project will be constructed." We do not get the reasoning.
In the Davis-Bacon Act a "locality" is referred to as a
political subdivision -- not a statistical area used for other data
gathering purposes. There is no contention in the record that
there is any practice on the part of the local construction
industry to negotiate or otherwise fix or adjust wage boundaries on
the basis of a standard statistical area. This may or may not be
the case. We are of the opinion the ESA should revert in this
instance to its customary practice of making its determinations on
a county by county basis. If at some future time interested
persons, by agreement, develop a MARTA-wide agreement or other
express schedule of wages on a MARTA-wide basis, such a schedule
might become the foundation for a MARTA-wide, i.e., bi-county
determination. At the present, this is not warranted, whether
on the basis of a statistical "locality" or on the basis of facts
as presented in the record, e.g., a large [23]
~24
[24] volume of construction work in both counties performed by contractors
who neither work under union agreement with a common schedule for both
counties, or who themselves adhere to any uniform schedule of wages
applicable to both counties. If the industry for work of the
nature in question has not seen fit to establish as the predominant
practice common wage schedules for both counties, the ESA should
not find such a practice because of some convenient statistical
reason or because MARTA traverses both counties. /FN7/ The ESA
shall inquire into the industry practice.
May City Sewer and Water Line Projects Be Excluded As a
Class on Grounds of Dissimilarity?
ESA says that it excluded these projects as a class pursuant
to local industry practice as found by ESA to exist. MARTA does
not directly challenge this finding or ask specifically for
inclusion of these projects but does argue an inconsistency between
their exclusion and the [24]
??????????????????
/FN7/ In Fordice Construction Company and Jack Durrett (Sweet Home
Stone Company) WAB 75-01 and -02, decided August 14, 1975[,] ESA
advised the Board that it is ESA's practice to require separate
wage rates on a county by county basis where a single contract
calls for riprapping or similar river improvement work on both
sides of a river dividing two counties, ESA has not justified a
di[s]tinction with respect to these three segments at this stage
of overall development. [24]
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[25] inclusion of certain water and sewage treatment projects
which are discussed below. The record does not contain any serious
challenge to the ESA decision in respect to the exclusion of this
class of projects, and the exclusion will be allowed to stand.
Should Some 5 Projects Listed In Petitioner's
Supplemental Brief, Appendix 8, Table A, Primarily
Trackwork, Be Excluded From One or More of Each County
Determination as Dissimilar?
Projects 16, 17, 18, and 22 in Fulton and Project 1 in DeKalb
described in petitioner's supplemental brief are tracklaying
contracts. MARTA, on the theory that a separate determination may
issue for each contract, suggests the inclusion of such projects
only in similarity comparisons for contracts involving tracklaying.
We note that the ESA spreadsheet indicates that, except for an
occasional operating engineer or truck driver, the employees shown
on these projects are all reported as laborers as shown on line 21
and line 22. In view of the evidence in the record as to the
specialized nature of trackwork a question arises as to whether
these laborers, for wage determination purposes, should be averaged
into the general labor classification [25]
~26
[26] as ESA has done or whether one or more occupational subclasses are
required under the general labor category. We will ask ESA to review
this question and take action as is appropriate on the facts.
Is the "Entire" MARTA System as Presently Planned Or Is
"Each" of the Three Contract Segments Presently Before
the Board to be Considered the Contract Work for Purpose
of Making the Similarity Comparison Between "Projects of
a Character Similar to the Contract Work" as Required by
the Davis-Bacon Act.
The Board concludes for the reasons already discussed that for
the purpose of disposing of the issues raised by this petition, the
work subject to each contract should be compared with similar type
projects to determine the appropriate wage rates. We do not have
to pursue at this time the question whether there are circumstances
when the "contract work," as used in the Act is used in a different
sense than the work to be done under the contract under
consideration. We have noted that MARTA's current three segment
undertakings cannot be interpreted as an effort to gerrymander work
to avoid Davis-Bacon Act principles. [26]
~27
[27] However, there is an important word of caution for the
future which is warranted here. The Board would assume that the
revised formulas of exclusion and inclusion of projects to be
considered "of a character similar" will yield wage
predeterminations for some occupational classifications lower than
those already found by ESA. The fact that some lower wage rates
may be found to prevail for these three segments shall have no
cumulative or ratcheting affect in determining the appropriate wage
predeterminations or the appropriate classifications of the work
for other MARTA contract work in other stages and at other times
and locations.
Additionally, MARTA has made the discreet argument that these
three segments should be considered alone. But it has also made
the all encompassing argument that all of the MARTA system should
bear a "heavy-highway" work classification; otherwise it claims,
"it is estimated" labor costs will increase $100,000,000 for the
entire project. It is correct with respect to its first position
for the purpose of the resolution of this case. It is wrong as to
its second contention. [27]
~28
[28] There is evidence in the record that the local contractors
that predominate on earth, structural and drainage work such as
contemplated in these three segments would not build the MARTA
stations and related buildings and structures -- at least not with
their own forces . Similarly, total MARTA involves some 52.8 miles
of track work with some 3-1/2 miles included in these three
segments. There is evidence in the record that it is unlikely the
contractors that predominate locally on earth, structural and
drainage work would lay the tracks -- at least not with their own
forces.
The instant MARTA contracts do involve some electrical and
mechanical (or related work), e.g., electric power ducts and
ventilation, but the greater amount of such work will be in later
segments and of a type that would not normally be performed by
earth, structural and drainage contractors with their own forces.
The MARTA system includes some 10 miles of subway of which
about 1/2 mile is included in one instant contract. It is not
clear whether some or how much of the remaining 8-1/2 miles will be
constructed by tunnelling or will be adjacent to or under buildings
and structures. Such work [28]
~29
[29] may require special work classifications -- or even specialist
contractors. Not involved in the three instant segments but a part of
the overall MARTA construction are 41 stations of varying sizes and designs.
It was MARTA's position in this matter that for the present at
least, each of the three contracts in question must be considered
as free standing to be compared to projects of like nature to the
work in these segments only, not to or with MARTA as a
comprehensive completed system with all its buildings, structures,
stations, its mechanical, electrical, and ventilating work; its
overall planning financing and comprehensive engineering; its
integrated rail transit designs and proposals. In this it has
prevailed. But by the same reasoning there will be other segments,
other contracts, where work will progress at different times and
places and under different development conditions. A factor the
Board has taken into account is that these three segments have been
represented to the Board to be isolated from built up commercial or
heavily populated residential areas and hence are more akin to
highway type construction. It does not necessarily follow that
because interstate highway work may traverse [29]
~30
[30] downtown commercial areas or other heavily built up areas, highway
rates will be germa[]ne to a rapid rail transit system in such areas.
Should Certain Specified Projects /FN8/ Primarily Water
and Sewage Treatment Contracts Listed In Appendix 8,
Table A to Petitioner's Supplemental Brief Be Excluded as
Dissimilar?
Earth moving, (e.g., excavation, backfill, embankment grading,
etc.) structural (e.g., concrete retaining walls piling, concrete
underpasses, structures for arterial trackage, etc.) drainage work
and electric power ducts constitute the predominance of work under
the three segments. The cut and cover contract, CE-330, will be
constructed in an open, unrestricted area to provide an underpass
under a park and three streets. No special shoring up of buildings
or structures will be required since we are told the existing
buildings are to be demolished. At this stage, the Board can find
no characteristics of this work distinguishing it from similar
"heavy" type work in connection with highway projects. [30]
??????????????????
/FN8/ Projects Fulton 2, 3, 4, 5, 6, 7, 9, 10, 11, 12, 13, 14, 15,
20, 21, and supplemental 3 and 4 plus DeKalb 2, 3, 5, 6, and 7. [30]
~31
[31] We have reviewed the facts presented in the record in
respect to each of the water and sewer treatment contracts which
the ESA relied upon for its project similarity comparisons.
Basically, most of them involve the construction of processing
plants with the predominant work being of a mechanical and
equipment installation character. Some also involve considerable
"building" construction and the installation of substantial
mechanical or electrical control systems. Some do involve quite
large amounts of underground concrete work, but concrete work and
related structural work is planned and executed in coordination
with the readily identified building construction.
In other segments of the work on the MARTA system in this or
other stages of development, these water treatment and sewage
disposal projects or other projects of this type or other building
projects may become the highly cogent and appropriate ones for
making project similarity comparisons. But for the instant case,
the ESA should exclude them in reassessing its survey data for the
three wage determinations. At this stage, the Board finds
sufficient characteristics of the work on these water treatment and
sewage disposal plants which distinguishes their [31]
~32
[32] nature from the nature of the heavy work that goes into these
three segments.
Should 14 Named Bridge and Highway Projects Listed In
Petitioner's Supplemental Brief, Table B -- Appendix 8,
Be Included As Similar?
MARTA urges these 14 projects be included as similar based
upon (1) analysis of the predominant construction in the 14
projects and (2) the inclusion by ESA of certain other bridge and
highway projects regarded by petitioner as comparable to these 14.
ESA says it excluded these projects because they were highway
projects and have been traditionally so considered in the Atlanta
area. ESA did include, as petitioner contends, 3 bridge projects
and apparently did this on the basis that it labeled these three
bridges "heavy" while labeling the others "highway." The Board has
reviewed the descriptions of the 14 projects that appear in the
record. The Board concludes that A through I and T and U all of
which predominantly involve both earthwork and structural work
should be included for purposes of similarity comparison. Project
O also should be included provided that it falls within the time
frame used in the determination and this is not clear from
petitioner's Table B. The Table contains insufficient detail [32]
~33
[33] to tell whether projects L, M, N, and V should be
included. If little or no structural work and little earthwork was
involved, these projects may be too limited in character to be
regarded as similar for present purposes. ESA should include any
of these which involve substantial structural and/or embankment
work. If some or all are predominantly pavement, curb and gutter,
guardrail, pavement striping, etc.,these should not be included.
* * *
While directing the ESA to reassess its three wage
determinations pursuant to this decision, the Board considers it of
equal importance -- perhaps of transcendent importan[ce] -- to
discuss some of the implications of this decision. In holding that
the ESA should exclude the water treatment and sewage disposal
projects at this time because these projects should be considered
dissimilar in nature to the three segments of work before the
Board, we can for[e]see that at some further stage of MARTA
development -- at other times, other places, under other contracts
or clusters of contracts -- such projects will be germa[]ne while
work of a highway related nature will not be. Such a transposition
of projects appropriate for determining projects of a character
similar could come quickly. [33]
~34
[34] The Board has before it for attachment of appropriate
Davis-Bacon Wage predeterminations only the following three
segments:
(1) Contract CW-540, the construction of 4,000 feet of
rapid rail transit road bed (without rails) at-grade line
in Fulton County;
(2) Contract CE-173, a bridge widening and Georgia
Railroad track relocation project in both Fulton and
DeKalb counties; and
(3) Contract CE 330, 4,000 feet of rapid transit road
bed (without rails), 1,100 feet at-grade and 2,900 feet
of double box concrete subway section.
Although MARTA has asked for a decision limited to these three
projects and not to MARTA as a whole, it has not so limited the
scope of the argument as to why the MARTA system deserves a lower
wage structure. MARTA has stated to the Board and has made the
same statement publicly that unless the three determinations before
the Board were corrected to "heavy" highway rates it is estimated
that the use of the wage rates they require would increase the cost
of the MARTA rapid rail system by over $100,000,000. Perhaps this
statement of estimated increased future wage [34]
~35
[35] costs alone is hyperbolic and rhetorical. The Board observes that
MARTA is advised by consultants and experts in the transit field. To
the extent that there will be increased labor costs above present
estimates to meet the wage protection standards to which MARTA has
committed itself, the experts have and will have no one to blame
but themselves.
The Board has felt compelled to note this major argument of
MARTA because it pervades its presentation. Such an argument tends
to politi[ci]ze the administration of the Davis-Bacon Act and to
place the entire onus of increasing costs of doing business these
days where it does not belong. Our concern is only that MARTA's
friends and the public should not be led to believe that any future
increased costs of development, a condition indigenous to subway
systems, is to be laid entirely at the door of the organized sector
of the construction industry in the Atlanta area, both labor and
management.
It would appear to the Board that it would behoove all
locally interested parties to this proceeding to assess the overall
situation with a view of arriving at some understanding concerning
the overall project development. All will then be in a better
position to make future plans. [35]
~36
[36] The case is remanded to ESA for supplemental findings and
new wage determinations in accordance herewith. If the evaluation
work of ESA requires new field survey work, it should proceed with
utmost expedition.
SO ORDERED:
(s) Oscar S. Smith, Chairman
(s) Stuart Rothman, Member
(s) Clarence D. Barker, Member [36]
