C.D. Projects, Inc., WAB No. 76-15 (WAB May 4, 1977)
CCASE:
ESPANA GARDENS
DDATE:
19770504
TTEXT:
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[1] WAGE APPEALS BOARD
UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, D. C.
In the Matter of
WAB Case No. 76-15
FHA Project No. 136-35223-PM Dated: May 4, 1977
APPEARANCES: Lawrence H. Kay, Esq. for C. D. Projects, Inc.
George E. Rivers, Esq., Gail V. Coleman, Esq.
for the Wage & Hour Division, U.S. Department of
Labor
Decision by: William T. Evans, Member, Thomas Phelan, Member /FN1/
DECISION OF THE WAGE APPEALS BOARD
This case is before the Wage Appeals Board on the petition of
C.D. Projects, Inc., a California corporation, which seeks review
of the Assistant Administrator's decision of February 18, 1976,
denying the request by the Department of Housing and Urban
Development to grant the petitioner a hearing under Section 5.11(b)
of Title 29 of the Code of Federal Regulations.
To briefly recite the factual situation leading to the dispute
in this case, the petitioner proposed to build the housing project,
Espana Gardens, in Butte County, California, for the Department of
Housing and Urban Development in 1972. It appears that from the
first meeting in August 1972, between petitioner [1]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
/FN1/ Chairman Alfred L. Ganna did not participate in the decision
of this case. [1]
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[2] and DHUD, petitioner protested the prevailing wage rates
determined by the Department of Labor for the carpenters. Over the
following year there followed many meetings and contacts between
petitioner, officials of DOL and officials of DHUD. On all of
these occasions petitioner maintained his position that the wage
rate was not prevailing. The government agencies urged him to
submit information to substantiate his claim. It also appears that
DHUD encouraged petitioner to proceed with the project and set up
an arrangement whereby any subsequent change in the wage rate in
question would be adjusted between the petitioner and DHUD. By
August of 1973, the project was completed and an investigation of
the petitioner's payrolls indicated that 23 employees had been paid
less than the wage rates contained in the wage decision in effect
at the time of initial endorsement of the mort[g]age. DHUD
withheld $6,710.65 in final payments to petitioner to satisfy these
claims. Petitioner has appealed to the Board to obtain the [sec]
5.11(b) hearing before an Administrative Law Judge to review the
facts as set forth in the petition. The petitioner contends that
the matter is a dispute concerning the payment of prevailing wages
which involves a novel or unusual situation, and that the failure
to grant such a hearing is an abuse of discretion by the Assistant
Administrator.
The Board considered this matter on the basis of the Petition
for Review of the petitioner and the Statement for the Assistant
Administrator submitted by the Solicitor of Labor. It was
determined [2]
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[3] that a hearing by the Board would not be necessary since there was
no dispute as to the facts of the case. The sole issue raised by the
petitioner is whether it was an abuse of discretion for the Assistant
Administrator to deny the requested [sec] 5.11(b) hearing.
The Board recognizes that the authority delegated to the
Assistant Administrator to grant hearings pursuant to [sec] 5.11(b)
is discretionary. An aggrieved party does not have a [*] right [*]
to such a hearing. [Emphasis in original.] There is no indication
in the record that the Assistant Administrator's actions in denying
the hearing were either arbitrary or capricious.
It is apparent here that the petitioner is still trying to
raise the question of what was the prevailing rate for the craft in
question before the project was started. Petitioner had at the
time the question first arose in 1972 the options of appearing
before the Wage Appeals Board to protest the prevailing wage rates
in contention prior to the start of construction or initial
endorsement of the mort[g]age, as provided in Regulations, Part 1,
Section 1.7(b) (29 CFR); or he could have chosen not to proceed
with the construction of the project until such time as the
question of the wages was finally settled. Following neither
of these options he chose to proceed with construction. He cannot
be allowed to question the wage rates in the wage determination
provided to him. [3]
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[4] It seems to the Board that the criteria contained in the
Regulations that the dispute must concern payment of prevailing
wage rates or proper classifications which involves significant
sums of money, large groups of employees, or novel or unusual
circumstances have not been met. The only practical benefic[i]al
effect that a [sec] 5.11(b) hearing could now provide to the
petitioner would be to challenge the wage rate for carpenters after
the project has been built. This is not a proper function of a
[sec] 5.11(b) hearing nor is it allowed under the Regulations.
The Board upholds the decision of the Assistant Administrator
and dismisses the petition.
BY ORDER OF THE BOARD
Craig Bulger,
Acting Executive Secretary
Wage Appeals Board [4]
