CCASE:
ALCOA CONSTRUCTION SYSTEMS, INC.
DDATE:
19750911
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 applicability of the Davis-
Bacon and Related Acts to certain work
performed by employees of Alcoa WAGE APPEALS BOARD
Construction Systems, Inc., HUD Projects: CASE NO. 75-06
Holiday Acres, No. 033-44127-LD-SUP, DECISION AND ORDER
Latrobe, Pennsylvania, Birchfield DATED: Sept. 1, 1975
Apartments, No. 033-44128-LD-SUP,
Greensburg, Pennsylvania; and Running
Brook II, No. 033-44129-LD-SUP, Indiana,
Pennsylvania
Alcoa Construction Systems, Inc.
Petitioner
Appearances:
Martin D. Schneiderman, Esq.,
Steptoe and Johnson
Thomas Costa, Esq.,
Aluminum Company of America
David C. Jacobson,
Alcoa Construction Systems, Inc.
For Petitioner
George E. Rivers, Esq.
Council for Contract Labor Standards
For Employment Standards
Administration, U. S.
Department of Labor [1]
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[2]
Appearances -- continued
Thomas X. Dunn, Esq.
Sherman, Dunn, Cohen and L[ei]fer
For Building and Construction Trades
Department, AFL-CIO
BEFORE: Oscar S. Smith, Chairman, Wage Appeals Board, Clarence D.
Barker and Stuart Rothman, Members
This proceeding is before the Board pursuant to Order No.
24-70, as amended, of the Secretary of Labor on a petition for
review filed by Alcoa Construction Systems, Inc. (herein Alcoa) on
May 13, 1975, pursuant to Wage Appeals Board's rules of procedure
(29 CFR Part 7). Oral hearing was held on July 1, 1975 /FN1/
before the full Board. Interest persons were provided opportunity
to present their positions. Opportunity was afforded to July 23,
1975 to file post hearing statements.
Petitioner requests review of a decision dated March 27, 1975,
by the Acting Administrator, Wage and Hour Division [2]
???????????????????????????
/FN1/ This case may be cited as "Alcoa Construction Systems, Inc.,
Latrobe, Pennsylvania, WAB Case No. 75-06. [2]
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[3] U.S. Department of Labor which held that (1) the Davis-Bacon
and Related Acts /FN2/ were applicable to onsite repair work on
modular units performed by Alcoa under three contracts between it
and affiliated companies of Crossgates, [3]
???????????????????????????
/FN2/ The applicable labor standards provisions for the subject
projects are contained in Section 212 of the National Housing Act,
which provides in pertinent part that the principal contractor of
the housing to be constructed shall certify ". . . that the
laborers and mechanics employed in the construction of the
dwellings or the housing project involved have been paid not less
than the wages prevailing in the locality in which the work was
performed for the corresponding classes of laborers and mechanics
employed on construction of a similar character, as determined by
the Secretary of Labor in accordance with the Davis-Bacon Act,
as amended . . ."
The Davis-Bacon Act approved March 3, 1931, as amended (40 U.S.C.
276a, 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, for construction,
alteration, and/or repair, including painting and
decorating, o[f] 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 [[3][FN2 CONTINUED ON PAGE 4]
[4] 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, * * * computed at wage rates
not less than those stated in the advertised
specifications, regardless of any contractual
relationship which may be alleged to exist * * *.
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[4] Inc., /FN3/ and (2) the wage rates to be paid to the Alcoa
employees working at the three job sites here involved are "the
building trades rates set forth in the wage determinations issued
for the three projects."
Petitioner, Alcoa, entered into three separate contracts with
Crossgates to manufacture and deliver certain factory prefabricated
kitchen and bathroom modules to Crossgates for erection by
Crossgates under contracts for residential housing awarded to
Crossgates by the Department [4]
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/FN3/ Crossgates, Inc., contracted with the Department of Housing
and Urban Development (HUD) to construct three residential housing
projects: 216 units at Holiday Acres, No. 033-44127-LD-SUP,
Latrobe, Pennsylvania; 216 units at Birchfield Apartments, No.
033-44128-LD-SUP, Greensburg, Pennsylvania; and 152 units at
Running Brook II, No. 033-44129-LD-SUP, Indiana, Pennsylvania.
These contracts contained the Davis-Bacon contract clauses as set
forth in 29 C.F.R. [sec] 5.5. Crossgates, Inc., subcontracted the
three projects to affiliated organizations -- A.C. Schowtzer, Inc.,
for the Greensburg and Latrobe projects, and Indiana II
Construction Associates for the Indiana project. [4]
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[5] of Housing and Urban Development (herein HUD). The required
Davis-Bacon clause was included in the contract between HUD and
Crossgates but not in the contracts between Alcoa and Crossgates.
The Alcoa-Crossgates contracts were viewed by the parties as supply
contracts but they did contain a provision that Alcoa would replace
or repair any modules found defective within a specified period of
time. The instant appeal involves repair and replacement work
performed on site by Alcoa under this provision of its Crossgates
contracts.
This repair and replacement work embraced a number of specific
items. /FN4/ However, some 80% of the man hours expended was
limited to (a) correcting defects in coating on door jambs, (b)
adjusting door jamb installations, (c) touching up drywall [5]
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[6] checks and nail pops and repairing or replacing wet drywall.
Alcoa describes this work as follows:
With regard to the coating on the door jams, the jambs
were purchased from a third party [6] [TEXT CONTINUES AT
PAGE 7 AFTER FN4]
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/FN4/ Indiana Contract
A total of 152 modules delivered under the contract and
18,749 man-hours required to manufacture. The warranty
work affecting many of the modules that was performed at
the site was as follows:
Man-Hours
a) Repair defects in coating on door jambs 200
b) Adjust door jamb installations 152
c) Replace two kitchen counters damaged in transit 9
d) Replace two utility room doors damaged in transit 4.5
e) Touch up caulking bonds 38
[5][FN4 CONTINUED ON PAGE 6]
[6] f) Touch up drywall checks and nail pops 50
g) Replace or repair "wet " gypsum board 76
h) Adjustment to inlay floor covering 18
i) Replace two defective "P" Foyer 2
j) Replace four defective flex connections 2
k) Replace three defective wax seal rings on commode 6
l) Anchor loose shower heads 10
m) Replace eight defective water lines for shutoff
valve to fixture 6
n) Repair one crushed heat duct 1
o) Replace two defective tub/shower water controls 4
p) Adjust six lav-pop-up's controls 3
q) Replace one defective kitchen sink water control 2
r) Re-seat and seal two sink strainers 2
s) Replace two cracked water closets [10]
t) Re-anchor two main DWV stacks 2
TOTAL MANHOURS (at approximately 4.75 per
hour equals $2,837 of direct labor costs) 597.5
Greensburg Contract
A total of 216 modules delivered under the contract and 26,885
man-hours require to manufacture. The warranty work at the site was
as follows:
Man-Hours
a) Correct defects in coating on door jambs 348
b) Adjust door jamb installations 233
c) Replace four doors 9
d) Touch up caulking boards 57
e) Touch up excessive drywall checks and nail pops 82 [6]
[FN4 CONTINUED ON PAGE 7]
[7] f) Adjust floor inlay installation 28
g) Replace three defective "P" Foyer 3
h) Replace twelve defective Flex connectors 6
i) Replace eight defective wax seal rings on commodes 16
j) Anchor loose shower heads 25
k) Replace ten defective water lines from shutoff
valves to fixtures 7
l) Replace four defective shut-off valves 4
m) Replace five defective tub-shower controls 10
n) Replace twelve defective controls in commodes 6
o) Replace two defective kitchen sink union controls 10
p) Replace two defective breakons 2 [7]
[FN4 CONTINUED ON PAGE 8]
[8] q) Adjust six lav-pop-up's controls and twelve
tab pop-ups controls 15
r) Re-seal seven sink strainers 2
s) Tighten twelve water closets 11
TOTAL MANHOURS (at approximately 4.75 per
hour equals $,123 of direct labor costs) 868
[END FN 4]
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[7] supplier who applied the coating on the jambs by dipping
them in a vinyl substance. A defect in the jambs stemmed
from the failure of the vinyl coating to adhere
completely resulting in the flaking of the coating.
Approximately 75 percent of the defective jambs required
a light sanding to feather the edges and then a coating
touch-up. Generally, fifteen minutes to one hour was
required to remedy this defect. The supplier was
back-charged for the costs in repairing this defect.
The door jambs which required adjustments were placed
into the service modules at the ACSI plant. The inside
wall coverings (gypsum board) of the modules are
installed at the plant; however, the outside wall
covering[s] (gypsum board) are installed on-site not by
ACSI but by the customer (wall framing open framed to the
outside). In this case, a defect apparently occurred
during transport or in the plant installation of the door
jambs involving an over-allowance of 1/8 inch on the
unfinished side of the wall. Repair of the defect
involved loosening of the shims and adjustment of the
jambs by tapping them into place. The time involved in
accomplishing the adjustment varied [7]
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[8] from ten minutes to one-half hour per door jamb
assembly.
In regard to the replacement and repair of wet
gypsum board, the service modules were completed for
delivery at the plant and were then wrapped in a
protective plastic cover. While stored or transported to
construction site, some of these plastic covers were
apparently torn. Such tears resulted in seepage of
moisture and subsequent damages to the gypsum board.
Most of the damage consisted of discoloration of the
gypsum board and required only minor touch-up or, in some
instances, renailing. In a few cases, the gypsum board
had to be replaced.
Alcoa argues that the Davis-Bacon Act did not apply to its
contracts with Crossgates because these contracts were supply
contracts which contemplated no on-site work other than might
result under the warranty provisions and that the amount of this
was insubstantial and incidental to the supply contracts. Alcoa
argues further that even if the Act were applicable, the
appropriate wage should be based on the [8]
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[9] classification of employees that Alcoa actually used to perform
the work in question (i.e., shop employees from Alcoa's plant in
Tyrone, Pa.)
In respect to the above described work we attach no
significance to the label "warranty". We assume that Crossgates
also provided some kind of a warranty for other work under its
contract. The adjustment, alignment and plumbing, including
loosening and fastening of a door jamb on the construction site, in
our view, is clearly construction work in every sense of the word
and is as fully and closely related to the completion of the
structure of the building as to the module itself. As Alcoa
states, the adjustment was required in order that the sheet rock
could be properly fitted on the side of the module partition
external to the module -- an on-site installation by Crossgates.
We also attach no significance to the Occupational labels Field
Service Mechanic or Modular Man. An almost universal trade
practice within the construction industry assigns such work to
carpenters. The applicable wage rates are clearly those found to
prevail for carpenters in the localities involved.
We arrive at a similar conclusion in respect to the drywall.
The repair or replacement on-site of damaged drywall, including
nailing, taping and painting can [9]
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[10] only be regarded as on- site construction. Such work clearly falls
primarily within the Occupational classifications of carpenter and/or
painter. If the dry wall checks or pops occurred on the externa side of
a module where the installation was by Crossgates the repair surely would
be at Davis-Bacon construction rates. It makes no sense for
on-site repairs on-the internal side of the module partition to be
made at any other rates. The applicable rates are those for
workers in the appropriate crafts as set forth in the wage
determinations included in the HUD Crossgates contracts.
A considerable amount of present day construction involves
the installation of millwork, panelling, cabinets etc., that are
delivered to the job in prefinished condition, we think it is
immaterial whether this prefinished material comes to the job in
pieces, partially assembled, or in modules. If the finish is
damaged or defective and is repaired on the job the work is on-site
construction falling primarily within the occupational
classification of painter.
We take it as undisputed that on-site work performed by
Crossgates under warranties given for work performed on-site by its
own forces is construction subject to the Act. We think it equally
clear that the Act is applicable when work [10]
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[11] such as above described is performed for Crossgates by Alcoa forces.
This is not to say that some factory installed components of modern day
residential equipment (e.g., the internal control mechanisms of a
dishwasher or a clothes washing machine) may not be repaired or
replaced on-site without reference to Davis-Bacon Act requirements.
But the Alcoa petition, at least the great bulk of the work
involved, does not involve such components.
The decision of the Acting Administrator is upheld and the
petition will be dismissed.
SO ORDERED:
(s) Oscar S. Smith, Chairman
(s) Stuart Rothman, Member
(s) Clarence D. Barker, Member
