Building and Construction Trades Department, AFL-CIO, WAB No. 76-10 (WAB Oct. 5, 1976)
CCASE:
POTOMAC WASTE WATER TREATMENT
DDATE:
19761005
TTEXT:
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[1] WAGE APPEALS BOARD
UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, D.C.
In the Matter of
POTOMAC WASTE WATER TREATMENT WAB Case No. 76-10
PLANT
Dated: October 5, 1976
Wage Determination 75-VA-176
Potomac Waste Water Treatment
Plant, Prince William County,
Virginia
APPEARANCES: Thomas X, Dunn, Esquire, John P. Counts, Esquire
for the Building and Construction Trades Department,
AFL-CIO
A. Samuel Cook, Esquire, J. Sloan Kay Kendall,
Esquire, M. Peter Lareau, Esquire for the
Occoquan-Woodbridge Sanitary District
Donald S. Shire, Esquire, George E. Rivers, Esquire
Gail V. Coleman, Esquire for the Wage and Hour
Administration, U.S. Department of Labor
MEMORANDUM AND ORDER
This matter is before the Board upon a motion to vacate and/or
reconsideration by the Building and Construction Trades Department,
AFL-CIO (hereafter Petitioners). The events leading to filing of
this motion are long and arduous. Over one year ago the Wage and
Hour Administration of the U.S. Department of Labor (hereafter Wage
and Hour) issued two wage determinations pursuant to its
authority under the Davis-Bacon Act, 40 U.S.C. [sec] 276(a) [1]
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[2] et seq. The adequacy and applicability of the wage data supporting
Wage Decision No. 75-VA-176 issued for the Potomac Waste Water
Treatment Plant and Wage Decision No. 75-VA-298 issued for the
Upper Occoquan Water Treatment Plant were questioned. Pursuant to
the regulations implementing the Davis-Bacon Act, the Wage and Hour
Administration of the Department of Labor (hereafter the
Administrator) determined a hearing before an Administrative Law
Judge was necessary to obtain information from all interested
persons concerning the appropriate prevailing wage rates for the
two projects. /FN1/
The Administrative Law Judge concluded that, contrary to Wage
Determination No. 75-VA-176 which included separate wage
determinations for building, heavy construction, and sewer and
water line installation work, a single wage rate applicable to
heavy construction work was appropriate. In determining which
projects to include in the wage compilation, the Judge noted that
there are three similar projects located near the Potomac Waste
Water Treatment Plant; only one, however, is located entirely
within the same county, [2]
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/FN1/ The Occoquan-Woodbridge Sanitary District moved to sever the
matter of the prevailing wage rates applicable to the construction
of the Potomac Waste Water Treatment Plant from the matter of the
prevailing wage rates applicable to the construction of the Upper
Occoquan Water Treatment Plant. The hearing on the latter was
postponed and never held. [2]
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[3] Prince William County. The others are located in adjacent
Fairfax County and one is located on the border of Fairfax and
Prince William Counties. /FN2/ Because the statute pursuant to
which federal aid is being made available to the
Occoquan-Woodbridge Sanitary District (hereafter the District),
the Federal Water Pollution Control Act, 33 U.S.C. [sec] 1372,
provides that the wages paid shall be "not less than those
prevailing for the same type of work in the immediate locality,"
and the Department of Labor regulations, 29 CFR [sec] 1.2(b),
provide that "area" under this Act shall mean "immediate locality",
the Judge recommended to the Administrator that it was necessary to
consider these three projects together with other projects of a
similar nature in Prince William County.
Thereafter, the Administrator issued his decision modifying
the Judge's wage compilations and omitting certain classifications
from the heavy construction wage rates. /FN3/
The District petitioned the Board for review of the
Administrator's decision on the basis that (1) some of the [3]
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/FN2/ The Quantico Sewage Treatment Plant, Sewage Treatment and
Related Facilities, located in Prince William County; the Lower
Potomac Waste Water Treatment Facility Sewage Treatment and Related
Facilities, located in Fairfax County; and the Upper Occoquan Waste
Water Treatment Facility, Sewage Treatment, Related Pump Stations
and Sewer Lines, located in Fairfax and Prince William Counties.
/FN3/ See the decision of the Administrator of the Wage and Hour,
March 29, 1976. [3]
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[4] data considered by Wage and Hour was based upon wages paid
outside the boundaries of Prince William County, (2) projects of a
character similar to the Potomac Waste Water Treatment Plant within
Prince William County were excluded, and (3) data submitted by the
Unions was incompetent. /FN4/ The Board conducted a hearing on
this matter on June 3, 1976 at which time all parties represented
at the hearing conducted by the Administrative Law Judge again
participated.
The Board determined, following the hearing and after receipt
of briefs from all interested persons, that the basis for the
Administrator's wage determinations was unclear and, therefore, it
was impossible to decide whether Wage and Hour correctly applied
the criteria of the Davis-Bacon Act and its implementing rules,
regulations, and orders. Accordingly, the Board remanded the
matter to Wage and Hour directing it to reexamine its wage
determinations to ensure their appropriateness. /FN5/ The Board
did not direct that a particular result be reached by Wage and
Hour, but rather directed that it "draw upon its own [4]
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/FN4/ See Petition for Review filed with the Board by the
Occoquan-Woodbridge Sanitary District on April 16, 1976.
/FN5/ See Decision and Order of the Wage Appeals Board dated June
23, 1976. [4]
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[5] expertise and administrative skills to assess the substantial
justness of a situation and to reach the right result based upon
long-established Davis-Bacon criteria as traditionally applied
without regard to the different preliminary procedures or different
routes taken by ESA to get the final conclusion." /FN6/
Wage and Hour decided to conduct a new wage survey and issued
Wage Determination No. 76-VA-443 for the Potomac Waste Water
Treatment Plant on July 29, 1976. It is this action which is the
basis for the Petitioners' present motion to the Board. /FN7/
The Board will consider the legal arguments raised by the
Petitioners and justification offered by Wage and Hour for Wage
Determination No. 76-VA-443. First, however, it is necessary to
consider the District's challenge of the Board's jurisdiction to
consider the Petition inasmuch as jurisdiction was retained for
only 60 days and that time period expired on August 22, 1976. The
Petition before the Board was filed on September 17, 1976, well
beyond the 60 day time limit. It is well known, however, [5]
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/FN6/ Id. at p. 4.
/FN7/ In its June 23, 1976 Decision and Order the Board retained
jurisdiction of this matter for 60 days to permit any party to
petition for a review of any subsequent action by Wage and Hour
upon remand. [5]
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[6] that the previous members of the Wage Appeals Board resigned
on or before July 1, 1976 requiring the Secretary of Labor to
select new members. The selection process consumed over two months
during which time the Board ceased to function except to receive
new petitions for review.
It is the opinion of the Board that the ends of justice will
be better served by considering the 60 day jurisdictional period
tolled during the time that the Board was not functioning. It is
appropriate, therefore, to now consider the petition inasmuch as it
was filed as soon as new Board members were selected.
Turning to the substantive questions raised by the Petition it
is the decision of the Board that Wage Determination No. 76-VA-443
issued by Wage and Hour on July 29, 1976 should be affirmed.
At the June 3, 1976 hearing the Board was disturbed by the
failure of Wage and Hour to adequately support its earlier wage
determinations for the Potomac Waste Water Treatment Plant.
Specifically, it appeared that the basic disagreement between the
District and the Unions involved the interpretation of the
Davis-Bacon Act and the Federal Water Pollution Control Act with
regard to the geographic [6]
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[7] scope of the wage survey conducted by Wage and Hour and the nature
of the projects which should be considered in the survey regardless of
the geographic scope. /FN8/
Wage and Hour has now provided the Board with a well stated
explanation for Wage Determination No. 76-VA-443. The Wage and
Hour statement indicates that it determined to survey only water
and sewer treatment plants and pumping stations because such
projects are of a similar character. It appeared, however, that
there was insufficient wage data on such projects in Prince William
County. Therefore, the survey included such projects located in
Prince William County and adjacent counties.
Petitioner does not take issue with the decision of Wage and
Hour to consider only water and sewer treatment plants and pumping
stations in its survey. Accordingly, the Board need not address
the issue formerly before it concerning the proper application of
the term "projects of a similar nature" used in the Davis-Bacon
Act. Petitioners continue to contend, nevertheless, that because
the controlling statute in this matter is the Federal Water
Pollution Control Act its language concerning prevailing wage rates
should be applied rather than the language in the Davis-Bacon Act.
The Federal Water Pollution Control Act states: [7]
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/FN8/ The propriety of separate wage rates for building and heavy
construction on water and sewer treatment plants is no longer at
issue inasmuch as the District and Petitioners apparently agree
that only one schedule of rates should apply to the construction of
the Potomac Waste Water Treatment Plant. [7]
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[8] The Administrator [of the EPA] shall take such action as
may be necessary to insure that all laborers and
mechanics employed by contractors or subcontractors on
treatment works for which grants are made under this
chapter shall be paid wages at rates not less than those
prevailing for the same type of work on similar
construction [*] in the immediate locality [*], as
determined by the Secretary of Labor, in accordance with
the Davis-Bacon Act . . . . 33 U.S.C. [sec] 1372 [*]
(Emphasis added) [*]
Customarily, the following provision of the Davis-Bacon Act
included in Federal and Federally-assisted construction contracts
controls the concept of area:
[. . . I]n the city, town, village, or other civil
subdivision of the State, in which the work is to be
performed . . . . 40 U.S.C. [sec] 276(a).
Petitioners argue that the language of section 1372 dealing
with the concept of the scope of geographic coverage is
significantly different from that in the Davis-Bacon Act. They
contend that under section 1372 political subdivisions such as
county lines have no importance. The area of comparison of
projects of a similar nature becomes that of the "immediate
locality," irrespective of county lines. Instead they propose a
"common sense approach" in which Wage and Hour should focus on as
small an area as possible to gather sufficient wage information
which would result in a geographic area which radiates from the
Potomac Waste Water Treatment Plant site for a distance [8]
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[9] of approximately 15 to 20 miles and includes three waste treatment
plants and two pumping stations. The Board is not persuaded that
Petitioners' approach is that mandated by the language of the
Federal Water Pollution Control Act and the Davis-Bacon Act.
The Board finds that Wage and Hour's approach is consistent
with the intention of both statutes and applicable implementing
rules, regulations and orders. By first identifying which types of
projects are of a similar nature as required by the Davis-Bacon
Act, Wage and Hour was able to determine that there was
insufficient data on projects in Prince William County upon which
to base a wage determination. The decision to extend the geographic
coverage to counties adjacent to Prince William is consistent with
the intent of the Davis-Bacon Act as reflected in Department of
Labor regulations. Petitioners' position is predicated upon the
assumption that Congress intended to provide for a different
application of wage survey methods from those employed by Wage and
Hour under the Davis-Bacon Act.
The applicable geographic area for determining prevailing wage
rates under the Davis-Bacon Act is the "city, town, village or
other civil subdivision of the state, in which the work is to be
performed." In Virginia Segment C-7, WAB 71-05 (February 18,
1972), Wage and Hour issued [9]
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[10] a wage determination for a segment of the rapid transit system in
the Washington, D.C. metropolitan area. Construction work encompassed
by the determination was located entirely within Arlington County,
Virginia. Yet the wage determination was based on wages paid in
Washington, D.C. The Federal Highway Administration appealed the
determination, arguing that the Wage and Hour had incorrectly utilized
wage rates paid in a geographic area outside of Arlington County,
Virginia.
The construction in that case was being undertaken pursuant to
the provisions of the federal Washington Metropolitan Transit
Authority Compact, which required that laborers and mechanics:
[S]hall be paid at wages 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. [*] (Emphasis added). [*]
Petitioners urged in that case that the use of the word "locality"
in the Compact, rather than the phrase "city, county, town, village
or other civil subdivision of the state" indicated Congress' intent
to expand the geographic area for prevailing wage determin[a]tions
under the Compact beyond that utilized under the Davis-Bacon Act.
Despite the fact that the projects relied upon by Wage and Hour to [10]
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[11] to determine the prevailing wage rates were part and
parcel of the same overall project as the construction to be
undertaken, the Board held that the prevailing wage determination
must utilize only wage data obtained from Arlington County:
The Board is satisfied that, when the term "locality" is
used, as it is in the subject case, its purpose is to
limit and not broaden the area the [A]dministrator takes
into consideration in determining the appropriate
prevailing wages for a given contract the same as in any
other Davis-Bacon wage predetermination. Virginia
Segment C-7 at 11-12.
The Board's interpretation of the word "locality" in the
Washington Metropolitan Transit Authority Compact is supported by
the legislative history of the Federal Water Pollution Control Act
with respect to the phrase "immediate local[i]ty." The first
appearance of the labor standards provision in the Federal Water
Pollution Control Act was in the 1961 amendments thereto. There is
nothing in the legislative history to indicate that Congress
intended in any way to alter the geographic area utilized under the
Davis-Bacon Act. Moreover, the legislative history of the 1972
amendments to the Federal Water Pollution Control Act indicate that
Congress, in fact, intended to impose the same standards as are
applicable under the Davis-Bacon Act: [11]
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[12] [33 U.S.C., Section 1372] requires the
application of the Davis-Bacon Act to
treatment work for which grants are made under
this Act. This is essentially the same as
existing law. Conference Report No. 92-1236,
1972 U.S. Congressional and Administrative
News 3827.
Thus, it is apparent that Congress did not intend to alter, in any
manner, the geographic area applicable under the Davis-Bacon Act.
That area, as recognized by both decisions of the Wage Appeals
Board and Wage and Hour's Interim Manual of Operations for Making
Wage Determinations under the Davis-Bacon and Related Acts is the
county in which the project is to be constructed. Metropolitan
Atlanta Rapid Transit Authority, WAB 75-05 (August 25, 1975);
Fordice Construction Company, WAB 75-01 and -02 (August 14, 1975);
Virginia Segment C-7, supra. The Interim Manual of Operations
states as follows:
Generally speaking, the county will serve as the best
unit of measure, in that it may ordinarily be relied upon
to reflect in a realistic and objective manner the wage
practices upon which a supportable prevailing wage rates
decision may be reached. Id. at 8.
Moreover, the specific question of the m[e]aning of the term
"immediate locality" under the 1958 amendments to the Federal-Aid
Highway Act, 26 U.S.C. [sec] 113, is discussed at length in a
memorandum prepared by the Office of the Solicitor, Department of
Labor. The memorandum concludes [12]
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[13] that Congress intended only to clarify its concern that
metropolitan wage rates should not be imported into non-urban and rural
areas, but that Congress did not intend to alter the method of
determining prevailing wages, as set forth in the Davis-Bacon Act.
To construe "immediate locality" differently from the
standards of the Davis-Bacon Act and other related statutes would
be contrary to the intent of Congress, longstanding precedent of
this Board and past practice of Wage and Hour.
Having determined that the meaning of the term "immediate
locality" is the same as the with meaning of the language in the
Davis-Bacon Act concerning geographic coverage, the Board need only
decide whether the decision to extend coverage of the survey beyond
the boundaries of Prince William County was reasonable.
Petitioners do not dispute this decision. What they contest is the
exten[s]ion of the wage survey to cover all projects of a similar
nature in the adjacent counties. However, as we have decided, the
best unit of measure in conducting wage surveys is the county.
Once the decision is made to traverse county lines, all projects
of a similar nature in the adjacent counties must be considered by
Wage and Hour, not just enough to obtain a sufficient sampling.[13]
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[14] The Interim Operations Manual indicates that where it is
necessary to cross county lines in order to gather sufficient wage
information, multi-county areas may be used except that a
metropolitan county should not be used to produce data for a rural
county, or vice versa. The Manual also restricts the use of
multi-county areas to situations in which each of the constituent
counties are adjacent. /FN9/ This is the procedure employed by
Wage and Hour in this case.
The Board finds that the determination of the prevailing wage
rates applicable to the Potomac Waste Water Treatment Plant was
reasonable and in accordance with the provisions of the applicable
statutes and their implementing rules, regulations and orders.
Therefore, the decision of the Assistant Administrator is affirmed.
BY ORDER OF THE BOARD /FN10/
Terry Yellig,
Acting Executive Secretary
Wage Appeals Board [14]
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/FN9/ See Interim Manual of Operations for Making Wage
Determinations under the Davis-Bacon and Related Acts, pp. 12
and 13.
/FN10/ Chairman Ganna took no part in the consideration of this
case. [14]
