International Brotherhood of Electrical Workers, AFL-CIO, WAB No. 1975-07 (WAB June 27, 1975)
CCASE:
SO. WATER TREATMENT V. INTER'NAL BROTHERHOOD
DDATE:
19750627
TTEXT:
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[1] UNITED STATES DEPARTMENT OF LABOR
WAGE APPEALS BOARD
WASHINGTON, D.C.
IN THE MATTER OF
Decision No. 75-TX-122, Modification WAB
No. 3, for South Side Water Treatment Case No. 75-07
Plant on the Bid Let by the City of Dated: June 27, 1975
Dallas under Grant from Environmental
Protection Agency
International Brotherhood of
Electrical Workers, AFL-CIO
Petitioner
Appearances:
Thomas X. Dunn, Esq.,
Sherman, Dunn, Cohen and Leifer
for the Petitioner
Gail Coleman, Esq.,
Office of the Solicitor of Labor
for the U.S. Department of Labor
N. Alex Bickley, Esq.,
Dallas City Attorney
for the City of Dallas
Guy F. Hawkins
for Talon Construction Company
Lawson L. Hockman
for National Electrical
Constructors Association [1]
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[2] BEFORE: Oscar S. Smith, Chairman; Clarence D. Barker and
Stuart E. Rothman, Members
DECISION AND ORDER
In this appeal petitioner seeks a determination under the
Davis-Bacon Act as amended and related Statutes that the prevailing
electrician wage rate applicable to specified construction at the
South Side Water Treatment Plant in Dallas is $8.53 per hour plus
certain fringes. Presently there are two current determinations
issued by the Division of Wage Determinations of the Employment
Standards Administration (ESA) -- 75-122 and 75-TX-123 both as
modified -- fixing this rate at $6.50 with no fringes. These
determinations resulted from findings by ESA pursuant to Section
1.2 of Part I of Title 29 CFR that a majority of the electricians
engaged on similar projects in the area did not receive the same
wage rate, that the rate most frequently paid was $6.50 and that
30% or more of the electricians received this rate (i.e., 26 out of
83).
Petitioner contends that 12 journeyman electricians employed
by Apollo Electric Company were counted among the 83 at a $9.38
rate plus fringes who should have been counted with a group of 20
others at the negotiated rate of $8.53 plus fringes. This would
have resulted in 32 of 83 at the negotiated rate thereby making
that rate the prevailing rate under Section 1.2.
Petitioner also contends that several other apparent errors
were made in the computation on which the determinations were
based, e.g., failure to include certain electricians shown on
payroll as linemen, failure to include certain electricians shown
on payrolls as cable splicers, use of a 1973 negotiated rate for a
project that continued at an equal or higher level of employment
for several months after the rate was increased on this project --
as elsewhere in the locality -- to the 1974 rate of $8.53 plus
fringes. These alleged survey errors had not been called to the
attention of ESA prior to the hearing on this petition. Their
resolution is not necessary to disposition of this petition and
they will not be dealt with by the Board in this decision. [2]
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[3] ESA reports that Apollo Electric advised it that the
electricians it employed at $9.38 were paid the negotiated rate for
foremen, that these men were qualified foremen but who at the
surveyed were working as journeymen electricians. It was an
Apollo Electric Company policy to pay these particular men at the
foreman rate both when working as foremen and when working as
journeymen.
Petitioner argues that in computing the prevailing rate under
Section 1.2 these particular Apollo Electric electricians should be
counted as if receiving only the negotiated journeyman rate "and
not any additional monies that the contractor puts in the pocket of
a worker who has shown ... that he is worth more."
Counsel for ESA and Counsel for the City of Dallas both argue
that Section 1.2 by its specific language requires the use of the
$9.38 -- not $8.53 -- in the computation, i.e., the section is to
be applied mechanically and literally.
Talon Construction Company, a bidder on similar projects in
the Dallas area, appeared at the hearing and supported the position
of ESA and of the City of Dallas. It argued further that if the
Apollo Electric electricians were to be counted in the computation
at the journeyman rate, all electricians employed by Talon at rates
either above or below $6.50 -- Talon's most common rate -- should
be counted in the computation as if paid at $6.50.
The two situations are in no manner anal[o]gous. Talon and
the unorganized contractors in the survey pay a variety of rates
and do not adhere to a job structure of a single job rate for each
class of work, (e.g., lineman, wireman, cable splicer, foreman,
etc.). Organized contractors are committed to a single base rate
type of structure. Such structures normally do not preclude the
payment to an employee of a rate above the regular rate for premium
pay work and in some situations to pay less than the regular job
rate at times when an employee is temporarily or intermittently
working at a lower level or [3]
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[4] classification. In some cases practice under the negotiated agreement
requires that this be done. In other cases the higher rate must be
maintained even though only journeymen's work is performed.
No one presented data at the hearing in respect to the
prevalence of these practices in construction. Nor was any data
presented as to the extent of such practices in other employment
where formal wage structures exist. Nevertheless, there can be no
question but that this type of policy is neither peculiar to Apollo
Electric nor of a novel character. We are satisfied there are
widespread practices, that vary in detail as between individual
employers of continuing the regular rate of an employee when
assigned on a temporary or intermittent basis to a lower wage
classification. We think it is clear that such assignments in no
way operate to modify or change the established rate for the work
classification.
On the facts, as presented in this case, if the payroll period
used is one in which an employee is actually working as a foreman
the Apollo Electric electrician should be considered only in the
computation of the foremen wage rate -- and then at the $9.38 rate.
But if the payroll period used is one in which he is working as a
journeyman he should be considered only in the computation of the
journeyman rate and then at the established journeyman rate of
$8.53 plus fringes -- disregarding both the foreman wage
differential and any other difference in benefits. ESA will be
instructed accordingly. [4]
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[5] ORDER
1. The ESA should recompute the wage predetermination in
accordance with the preceding paragraph of this decision.
2. The ESA should apply its usual rules with respect to the
application of the recomputed rate to projects in various stages of
going out for bids, bid openings, or contract awards.
SO ORDERED:
(s) Oscar S. Smith, Chairman
(s) Stuart Rothman, Member
(s) Col. Clarence D. Barker, Member [5]
