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<![CDATA[
CCASE:
CRC DEVELOP. CORP. & DON H. PLUMBING CO.
DDATE:
19780123
TTEXT:
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[1] WAGE APPEALS BOARD
UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, D. C.
In the Matter of
CRC DEVELOPMENT CORPORATION WAB Case Nos. 77-01
and 77-13
DON HARRIS PLUMBING CO.
Project No. 063-35135 PM
Northwood Apartments
Jacksonville, FL Dated : January 23, 1978
ORDER DISMISSING PETITION FOR RECONSIDERATION
The Wage Appeals Board is in receipt of a Petition for
Reconsideration of the decision rendered on October 31, 1977, in
the consolidated appeals concerning the above-captioned matters.
Petitioner CRC Development Corporation specifically seeks responses
to the following assertions contained in its petition.
I. The assertion that the Secretary of Labor is
authorized to require a contractor to pay
improperly employed apprentices at a
journeyman's wage rate under 29 CFR [sec]
5.5(a)(4)(i) is erroneous.
II. Assuming, arguendo, that the applicable
apprenticeship ratios were violated and the
Subcontractors were liable for the wage
differential, the six-month delay before the
Subcontractors were advised of the alleged
violation was so prejudicial that it would be
grossly unjust to penalize them. Under the
applicable regulations, HUD should have
examined the weekly payroll reports submitted
beginning in January 1975, and [1]
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[2] promptly brought the alleged violation to the
subcontractors' attention so that the wage
dispute could have been resolved or the claim
mitigated while the amounts in issue were
nominal. 29 CFR [sec] 5.6(a)(2) and (3).
It is the opinion of the Board that discussions of both
Petitioner's assertions were contained in the Board's decision on
these appeals dated October 31, 1977. In the penultimate paragraph
of the decision the Board addressed Petitioner's argument that
improperly employed apprentices should be paid some wage other than
the journeyman's wage. The Board stated that the Regulations at 29
CFR Section 5.5(a)(4)(i) are clear that the excess apprentices who
are performing the work of the craft and using the tools of the
trade are entitled to the journeyman's wage rate. Payment of the
apprentice wages are permitted under Davis-Bacon Act cases only to
the very limited extent that is spelled out in the approved
apprenticeship agreement. Other than the apprentice rate, there is
no provision for payment of a wage rate other than the journeyman's
rate in the Davis-Bacon Act and related acts.
Concerning Petitioner's argument that it was prejudiced by the
six-months delay before DHUD advised it of the alleged violations
and that it would be unjust to penalize Petitioner, the Board in
its decision reviewed and concurred with the Assistant
Administrator's interpretation of the regulation (Section
5.5(a)(4)(i)) [2]
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[3] which was subject of the appeal. The Board also concurred with
the Assistant Administrator's ruing finding no need for and
therefore denying the Section 5.11(b) hearing. The Board addressed
the question of DHUD's failure to provide correct and timely
guidance to its contractors and subcontractors on Page 5 of its
decision. But the Board did not consider DHUD's delay in
advising Petitioner of the alleged violations due to employment of
the excess apprentices so prejudicial that it would excuse or
mitigate Petitioner's obligation to pay the employees the
predetermined rate for the craft or crafts in question.
BY ORDER OF THE BOARD
Craig Bulger, Executive Secretary
Wage Appeals Board [3]
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