Construction General, Inc., WAB No. 76-11 (WAB Jan. 27, 1977)
CCASE:
2900 VAN NESS STREET
DDATE:
19770127
TTEXT:
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[1] WAGE APPEALS BOARD
UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, D.C.
In the Matter of
2900 VAN NESS STREET
Wage Determination DC76-3000 WAB Case No.
Applicable to FHA Projects
000-44207 LDP/SUP/R - 14th Street 76-11
Package I and 000-35111-PM-
2900 Van Ness Street, N.W., Dated:
Washington, DC January 27, 1977
APPEARANCES: Barry A. Minkoff, Esquire for Construction General,
Inc.
Thomas X. Dunn, Esquire for the Building and
Construction Trades Department, AFL-CIO
George E. Rivers, Esquire, William H. Berger,
Esquire for the Wage and Hour Division, U.S.
Department of Labor
BEFORE: Alfred L. Ganna, Chairman, William Evans, Member,
Thomas Phelan, Member
DECISION OF THE BOARD
This case is before the Board on the petition of Construction
General, Inc., a California corporation, which or[i]ginally sought
review of the Assistant Administrator's decision of [1]
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[2] April 30, 1976, that general wage determination No. DC75-3099, as
modified, was applicable to the construction of the projects at issue.
Pursuant to a hearing before the Board on June 2, 1976, an
interlocutory order was issued on June 4, 1976, directing the
Employment Standards Administration (ESA) to reconsider the wage
determination in light of the evidence produced by the petitioner
at the hearing. On June 29, 1976, ESA issued a new wage
determination (No. 16DC-43) which superseded all previous
determinations. /FN/ On July 1, 1976, petitioner filed a Motion
for Rehearing, which was granted by the Board by Notice dated
September 24, 1976. A hearing was held on December 1, 1976,
pursuant to the Board's Notice of Hearing and all interested
parties were represented at that proceeding.
The petitioner has asked the Board to recognize highrise
residential construction in the District of Columbia as a separate
category for wage determination purposes under the Davis-Bacon and
related Acts. It is the contention of the [2]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
/FN1/ Pursuant to the request of the Department of Housing and
Urban Development, a new wage determination was issued on September
23, 1976 (No. 76DC-48), which reflected certain escalator wage
increases which went into effect between June 29, 1976, and
September 23, 1976.
A copy of this wage determination is [NOT] attached hereto as
Exhibit A. [A COPY OF THE WAGE DETERMINATION IS AVAILABLE FROM THE
BOARD'S OFFICE UPON REQUEST.] [2]
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[3] petitioner that high-rise residential construction projects are
not of a character similar to projects of a nonresidential nature
and that, because of such dissimilarity, the Department of Labor
should issue a wage determination based solely on wages found to be
prevailing for laborers and mechanics employed on high-rise
residential projects.
The petitioner has urged the Board to adopt as the criteria
for establishing dissimilarity the wages paid to the employees and
the extent of their organization. Petitioner concedes that union
wages are paid to and prevail for workers employed on high-rise,
nonresidential construction but claims that a majority of workers
on high-rise residential construction in the District of Columbia
receive other than union wages and because of this, the two types
of projects should not be considered of a character similar to each
other within the meaning of the Davis-Bacon Act.
The Wage Appeals Board cannot agree with this rationale.
There is nothing in the Davis-Bacon Act, its legislative history,
or the history of the administration of the Davis-Bacon Act since
its enactment to support the Petitioner's position. The
Davis-Bacon Act states that the minimum wage rates payable to
laborers and mechanics in the construction of projects subject to
the Act [3]
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[4] shall be based upon 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, or in the
District of Columbia if the work is to be performed
there. [*] (Emphasis added) [*]
The test of whether a project is of a character similar to
another project refers to the nature of the project itself in a
construction sense, not to whether union or non-union wages are
paid or whether union or nonunion workers are employed. Since the
1935 amendments to the Davis-Bacon Act, the statutory focus has
always been on the character of the project itself rather than on
who was employed on the project or how much he or she was being
paid.
If the Board were to adopt the rationale urged by the
petitioner, it would appear to be proper to "carve-out" not only
high-rise apartments, but also hospitals, schools or hotels, or
even to differentiate between a 5-story office building and a
20-story office building depending upon whether union or nonunion
contractors performed a majority of that particular type of
construction. Further, in a locality wherein nonunion wage rates
had been found to prevail, it would appear to be proper to
determine union wages for construction of a [4]
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[5] hospital solely because recent hospital construction in the locality
was performed by contractors paying wages negotiated with labor
organizations. The Board does not believe that this was the intent of
Congress and therefore rejects such an interpretation of the Davis-Bacon
Act.
The petitioner has referred us to certain decisions of the
Board /FN2/ which establish and elaborate upon a so-called
"carve-out" theory which would appear to support the idea that one
project could be considered dissimilar from another project on some
basis other than the nature of the project itself. We do not
subscribe to this thinking for the reasons stated above and, to the
extent that such decisions are now being so interpreted and applied
by the Employment Standard[s] Administration such practice should
be discontinued.
BY ORDER OF THE BOARD
Craig Bulger,
Acting Executive Secretary
Wage Appeals Board [5]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
/FN2/ Wisconsin Avenue Nursing Home, WAB 72-09 (October 24, 1972),
Edgewood Terrace WAB 73-02 (April 4, 1973) [5]
