FOLK CONSTRUCTION CO., INC., WAB No. 76-02 (WAB May 4, 1976)
CCASE:
ILLINOIS GULF RAILROAD, V. FOLK CONSTRUCTION
DDATE:
19760504
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
ILLINOIS CENTRAL GULF RAILROAD, WAGE APPEALS BOARD
TENNESSEE-TOMBIGBEE WATERWAY
CASE NO. 76-02
WAGE DETERMINATION NO. 75-MS-293
DATED OCTOBER 29, 1975 FOR CONTRACT
WORK NO. DACW62-76-B-0008, NASHVILLE
DISTRICT, CORPS OF ENGINEERS, TO DECISION AND ORDER
RELOCATE ILLINOIS CENTRAL GULF
RAILROAD, TENNESSEE-TOMBIGBEE WATERWAY DATED: May 4, 1976
PETITIONERS:
FOLK CONSTRUCTION COMPANY, INC.
FORD CONSTRUCTION COMPANY, INC.
BOYER-JOHNSON-KIMES, INC.
MAHARREY-HOUSTON CONSTRUCTION CO.
WORSHAM BROTHERS
HAYES COMPANY, INC.
KING-SMITH, INC.
PHILLIPS CONTRACTING COMPANY, INC.
MISSISSIPPI STONE COMPANY
SMITH-JOHNSON, INC.
MISSISSIPPI ROAD BUILDERS ASSOCIATION, INC.
APPEARANCES:
For the Building & Construction
Trades Department AFL-CIO:
Thomas X. Dunn, Esq.
Sherman, Dunn, Cohen and L[ei]fer
Suite 801
1125 Fifteenth Street, N.W.
Washington, D.C. 20005
For the Department of Labor:
George E. Rivers, Esq.
Counsel for Construction Wage Standards
Office of the Solicitor
Room N-2458
U.S. Department of Labor
200 Constitution Avenue, N.W.
Washington, D.C. 20210 [1]
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[2] For Petitioners:
Alex W. Dann, Jr. Esq.
Dann, Blackburn & Smith
Law Offices
Suite 2337
100 North Main Building
Memphis, Tennessee 38103
For the Corps of Engineers:
Cecil W. Kuebret, Esq.
Division Counsel
South Atlantic Division
Atlanta, Georgia
Fred B. Shelton, Esq.
District Counsel
Nashville, Tennessee
BEFORE: Oscar S. Smith, Chairman and Stuart Rothman, Member [2]
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[3] This case is before the Board on the petition of a group
of contractors who are likely to seek award of a contract by
bidding upon Invitation No. DACW62-76-B-0008 for construction
of the Illinois Central Gulf Railroad Relocation across the
Tennessee-Tombigbee Waterway Project (hereinafter the Petitioner).
The Board has jurisdiction in this matter under Secretary of
Labor Order No. 32-63 (December 30, 1963).
The question presented is narrow. It is one brought before
the Board as an appeal from the final decision of the United States
Department of Labor, Employment Standards Administration, (herein
ESA) challenging the wage rate schedule selected by ESA.
Petitioner contends some other wage rate schedule is applicable to
the project in question. More specifically, the question is
whether Wage Decision No. 75-MS-293 dated October 29, 1975, and
subsequently Wage Decision No. 76-MS-41, February 25, 1976, were
the appropriate wage pre-determination schedules for insertion in
the bid documents for the project.
This project is described as a railroad relocation project.
Petitioner questions that characterization. The project includes
the following work as described in the bid invitation:
The work to be performed includes the following principal
features: Clearing and grubbing; unclassified and
channel excavation; drainage construction; construction
of a precast, prestressed concrete box beam bridge,
approximately [3]
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[4] 300 feet long; roadway and track construction for
approximately 5 miles of relocated railroad; and
miscellaneous related features of work.
After filing a Petition for Review with this Board, petitioner
moved that the matter be remanded to the Assistant Administrator
for the purpose of making an on-site wage survey. The Board
was advised that ESA had no objection to a remand and the Board
was further advised directly by ESA that it wanted the case
returned for further processing prior to a hearing before the
Board. The Board saw no objection under the circumstances to
permitting ESA to process the case further if it wished. The
Board returned the case to ESA until the February 13 hearing
date with a clear direction that the Board was not ordering ESA
to take any particular further action.
Prior to February 13, ESA conducted a special survey. Wage
data was collected on approximately 56 projects in a 12 or 13
county survey, including the Columbus Lock and Dam in Loundes
County, Mississippi. At the February 13 hearing the parties agreed
to recess in order to give ESA the opportunity to analyze and
evaluate the survey data and to take such wage predetermination
action as ESA believed appropriate. Each party, including the
Building and Construction Trades Department AFL-CIO, reserved the
right to request the Board to reconvene the hearing on short notice
if that party believed that by reason of ESA's decision the Board's
review of the matter should be resumed. [4]
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[5] On Friday, February 20, 1976, petitioner requested an early
resumption of the recessed hearing. The hearing was held on
February 25, 1976.
At the first day of hearing, Chairman Smith and Members
Barker and Rothman were in attendance. By reason of the short
notice, Member Barker was not present at the second day of hearing.
The decision in this matter is made by Chairman Smith and Member
Rothman. The petitioner in its initial request for review had
indicated that it would accept a decision made by less than the
full Board.
APPLICABLE STATUTES AND REGULATIONS
The proposed project is to be constructed under a direct
federal contract which as indicated, is subject to provisions
of the Davis-Bacon Act, 40 U.S.C. 276a, the pertinent provisions of
which reads as follows:
That the advertised specifications for every contract in
excess of $2,000, to which the United States . . . is a
party, for construction, alteration, and/or repair,
including painting and decorating of public buildings or
public works of the United States . . . 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[5]
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[6] 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 . . .
The pertinent provisions of the Department's Regulations
as they relate to this matter read as follows:
Sec. 1.2 Definitions.
* * * * *
(b) The term "area" in determining wage rates under the
Davis-Bacon Act and the prevailing wage provisions of the
other statutes listed in Appendix A shall mean the city,
town, village, or other civil subdivision of the State in
which the work is to be performed. * * *
Sec. 1.3 Obtaining and compiling wage rate information.
For the purpose of making wage rate determinations, the
Administrator shall conduct a continuing program for the
obtaining and compiling of wage rate information.
(a) The Administrator shall encourage the voluntary
submission of wage rate data to the appropriate Regional
Office as shown in Appendix B by contractors,
contractors' associations, labor organizations, public
officials and other interested parties, reflecting wage
rates paid to laborers and mechanics on various types of
construction in the area. * * *
(b) The following types of information will be
considered in making wage rate determinations:
(1) Statements showing wage rates paid on projects.
* * * [6]
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[7] (2) Signed collective bargaining agreements. * * *
(3) Wage rates determined for public construction by
State and local officials pursuant to prevailing wage
legislation.
(4) Information furnished by Federal and State agencies.
* * *
(5) Any other information pertinent to the determination
of prevailing wage rates.
(c) The Administrator shall supplement such information
obtained on a voluntary basis by such means, including
the holding of hearings, and from whatever sources he
deems necessary.
Sec. 1.5 Procedure for requesting wage determinations.
* * * * *
(c) The time required for processing requests for wage
determinations varies according to the facts and
circumstances in each case. An agency should anticipate
that such processing in the Department of Labor will take
at least 30 days.
Sec. 1.8 Scope of consideration (Exclusive of wage rate
determinations made pursuant to the Federal-Aid Highway
Acts as codified in 23 U.S.C. 113, which shall be made in
accordance with [sec] 1.3(b)(4).
* * * * *
(b) If there has been no similar construction within the
area in the past year, wage rates paid on the nearest
similar construction may be considered.
Sec. 1.9 Field Survey
Whenever the data at hand are insufficient to make a
determination with respect to all the crafts necessary to
perform the proposed construction work, a field survey
may be [7]
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[8] conducted in the area of the proposed
project for the purpose of obtaining sufficient
information upon which to make a determination of wage
rates.
At the February 25, 1976, hearing Counsel for ESA submitted
the "Wage Compilation" resulting from the special survey, this
listed each of the fifty-six projects surveyed pursuant to ESA
standard operating procedures. Counsel for ESA explained with
specific detail which of the fifty-six projects ESA believed
to be appropriate for inclusion in the wage data base for wage
predetermination purposes and which were not so appropriate
including its reasons for the inclusion or exclusion.
ESA explained that as a result of the survey it now included
in its wage data base, in addition to the Columbus Lock and Dam
project, a number of dewatering projects and a $7,000,000 dredging
project in Tishomingo County where the instant project is
relocated. The Corps of Engineers representative reported to the
Board that the dredging project not only includes dredging rates
but also negotiated rates comparable to wage rates in effect at the
Columbus Lock and Dam in Loundnes County. It was also represented
to the Board by both the Building and Construction Trades
Department and by ESA that the wage rates in fact paid on the
dredging project and on the dewatering projects in Tishomingo
County for purposes of inclusion in ESA's wage data base are
comparable to the wage rates included in ESA's most recent wage
predetermination 76-MS-41 dated February 25, 1976. [8]
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[9] All parties, particularly the Corps of Engineers, impressed
the Board with the need for an expeditious decision in this matter.
The Board has carefully and thoroughly reviewed the records
and data submitted in this case together with the prehearing briefs
and the arguments and discussion at the two days of hearing and is
convinced that the principles and procedures applied by the ESA
with respect to the wage determination issued February 25, 1976,
are applicable. /FN1/
The Board had not intended because of time limitations in
rendering the telegraphic decision of February 26, 1976, to
discuss in this decision a recent injunction issued by the United
States District Court for the Western District of Tennessee
enjoining the Corps of Engineers from making its award on the basis
of the then current wage predetermination which the ESA had
concluded were the appropriate wage rates. However, the Board
notes that the Court retained jurisdiction of the case between
Petitioners and the Corps of Engineers. The United States
Department of Labor did not make an appearance in that case. The
Board concludes that some comment is required. [9]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
/FN1/ The Board so ordered by telegram decision dated February 26,
1976. This decision and order is to provide further explanation of
that order. [9]
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[10] After the petition was filed in this matter, the United
States District Court for the Western District of Tennessee /FN2/,
granted petitioner's application for injunctive relief restraining
the Corps from opening bids until February 27, 1976, at 3:30 p.m.,
"in order to afford the Board of Wage Appeals in Washington, D.C.
an opportunity to render its decision." The Board believes there
is much wrong with the decision of the Court. On several recent
occasions, parties have gone to United States District Courts
seeking judicial intervention in the carrying out of the United
States Department of Labor's responsibilities in the administration
of the Davis-Bacon Act. It readily occurs to most courts that the
reason the courts are without experience and without judicial
precedent concerning Davis-Bacon matters is that the administration
of the Davis-Bacon Act and the carrying out of the Labor
Department's obligations under the Act and under Reorganization
Plan 14 is not and has never been the business of the Courts in the
45 year history of the Act.
The decision of ESA is a final determination of the Labor
Department and the use of that determination was not stayed in any
way within the Department. [10]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
/FN2/ Folk Construction Company, Inc. et al. v. Department of the
Army, Civil Action No. C-76-18 W.D. Tenn. February 2, 1976). [10]
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[11] We believe it far preferable for the courts not to get
into this kind of matter. Established law so directs. A
determination such as that made by the court in Civil Action
No. C-76-18 that the prospects for reversal by this Board of an ESA
determination justified injunctive relief is the kind of merit
decision as to wage rate determinations that it is not given by law
to a court to make. Such a determination was made here even before
the special survey had been made.
We will not dwell on all of the matters which we believe to be
wrong with the decision of the United States District Court for the
Western District of Tennessee. But inasmuch as the court has
retained jurisdiction, the parties may again find themselves before
the court. The Board points out: It is clear from its rules that
the Board will not request contracting agencies to defer bid
opening because a petitioner believes that a wage predetermination
issued by the Department of Labor is in error. For if this were to
be permitted, an agency, whether it be before this Board or a
court, would assume a very heavy responsibility for delaying
construction programs over matters which have been exclusively
restricted to the administrative process and to the United States
Department of Labor. The ramifications of and the damages ensuing
from delaying bid openings are not easily measured. [11]
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[12] ORDER
Upon consideration of the several submissions made by the
parties and interested persons and matters discussed at the hearing
held on February 13 and 25, 1976 it is the Board's conclusion that
ESA did not err in its wage determination of February 25, 1976.
Accordingly, the Board hereby reaffirms its order issued by
telegram on February 26, 1976, a copy which is attached.
OSCAR S. SMITH, Chairman
STUART ROTHMAN, Member [12]
