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CCASE:
HIGHWAY I-66 AND METRO, FAIRFAX COUNTY, VA
DDATE:
19770610
TTEXT:
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[1] WAGE APPEALS BOARD
UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, D. C.
In the Matter of
HIGHWAY I-66 AND METRO, WAB Case No. 77-08
FAIRFAX COUNTY, VIRGINIA
Review of Wage Determination
Decision 77-VA-242 for Contract
Involving Interstate Highway I-66
and Metro, Fairfax County, Virginia Dated: June 10, 1977
APPEARANCES:
Walter A. McFarlane, Esquire,
John J. Beall, Jr., Esquire,
Debra J. Prillaman, Esquire,
Norman S. MacPhee, Esquire
for Virginia Department of
Highways and Transportation
Thomas X. Dunn, Esquire,
Terry Yellig, Esquire
for Building and Construction
Trades Department, AFL-CIO
and Washington Building and
Construction Trades Council, AFL-CIO
George E. Rivers, Esquire,
Gail V. Coleman, Esquire
for the Wage & Hour Division,
U.S. Department of Labor
BEFORE: Alfred L. Ganna, Chairman, William T. Evans, Member
Thomas Phelan, Member
DECISION OF THE WAGE APPEALS BOARD
This case is before the Wage Appeals Board on the petitions
of both the Building and Construction Trades Department, AFL-CIO,
for the Washington Building and Construction Trades Council, [1]
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[2] AFL-CIO, (herein BTD-BTC) and the Virginia Department of Highways
and Transportation (herein VDH&T) seeking review of the Assistant
Administrator's wage determination No. 77-VA-242, dated March 29,
1977, applicable to contract I-66-1(100)69 for the proposed
construction of a portion of Interstate Highway Project I-66 in
Fairfax County, Virginia. A hearing on this matter was held on
April 27, 1977, pursuant to the Board's Notice of Hearing and all
interested parties were represented at the hearing.
The overall project under consideration is the construction
of a "four-lane limited access highway multi-mode concept located
in the corridor originally designated for the construction of
I-66." (Final Supplemental Environmental/Section 4(f) Statement).
It will be 9.6 miles in length connecting a 32 mile segment west of
Interstate 495 to the existing Theodore Roosevelt Bridge into the
District of Columbia. Contract I-66-1(100)69 is for the
construction of a dual four-lane highway from 0.227 miles west of
I-495 to 0.152 miles west of Route 7, a distance of 1.398 miles.
This dual four-lane highway will have a median strip with
sufficient ballast and other construction features to accommodate
an at-grade Metrorail line if at some future time it is determined
by the State and local governments to build such a line. [2]
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[3] The wage decision in question, 77-VA-242, was issued by the
Assistant Administrator on March 29, 1977. This decision contains
a schedule of wages for "all Washington Metropolitan Area Transit
Authority Rapid Rail Transit System work and related site work in
this contract". The wage rates reflected in this schedule were
rates negotiated by labor and management. For the remainder of
the work to be performed under this contract a second schedule is
provided in the wage decision reflecting lower wages found to be
prevailing for highway construction in Fairfax County, Virginia.
The Assistant Administrator has described the project in
question as including:
". . . construction of the 4 lane highway, as well as Metro
rapid rail construction as excavation for the trackbed,
several layers of ballast and sub-ballast, electrical
conduit, the drainage systems, a traction power cable
tunnel, and rough grading for the tie breaker station"
(Statement of the Assistant Administrator, p. 9).
He indicates this description requires the issuance of the two wage
rate schedules mentioned above. By way of explanation he further
states:
". . . it is necessary to examine all proposed
construction in the 1.398 mile segment of the project
. . . for purposes of determining wage rate schedules
applicable [3]
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[4] to contract I-66-1(100)69. Viewed in
its entirety, it is readily apparent that this segment of
the project, as contemplated, includes substantial
amounts of both highway and heavy construction (i.e., the
Metro rapid rail.) (Ibid. p. 10)
The BTD-BTC position calls for heavy construction rates to
apply to all phases of the project in question because they
consider that approval to construct I-66 would not have been
forthcoming from the U.S. Department of Transportation unless the
Commonwealth agreed to construct Metro in the median. To explain
this they stated that the former Secretary of Transportation had
been reluctant to approve construction of I-66, and when it finally
was approved by him
". . . it was only with the condition that the Metrorail
system would be part of the overall construction. It is
a fact, therefore, that Interstate Highway I-66 would
never have come into being except that it would be built
contiguous to and integrated with Metro construction
. . . . The construction of the project in its entirety
indicates that it is an integrated construction project
which came into being by virtue of the decision of DOT to
permit the construction of a highway as auxiliary to the
Metrorail system. (BTD-BTC Petition for Review, pp.
2, 3).
Furthermore, BTD-BTC asserts that the heavy work required to be
performed in the median for eventual use by Metro
". . . such as grading, sewage, water lines, storm drains,
electricity, and other utilities, and landscaping will
service both the highway and the Metro system . . . [4]
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[5] It must be made clear, however, that none of the
above installation will occur except that there was a
Metrorail system involved. (Ibid. p. 3).
Therefore, BTD-BTC views the overall project as heavy Metro
construction. It appeared at the hearing that BTD-BTC retreated
somewhat from this position and would generally accept the wage
rate schedules as determined by the Department of Labor.
In its petition the Virginia Department of Highways and
Transportation has asserted that only highway wage rates are
applicable to all work to be performed under the proposed contract.
The VDH&T claims that all of the work in the I-66 corridor, both
the highway lanes and median, is normal highway construction, that
the entire project is funded with highway funds and constructed in
accordance with general highway specifications, and that the same
material and labor skills are involved in constructing both the
highway and the median, and if anything, construction of the median
is simpler than the road portion of the contract. Furthermore,
both in its brief and at the hearing VDH&T maintained that no
decision has yet been made as to the ultimate use of the median
strip. It may contain railroad tracks, commuter bus lanes, or
simply be planted with grass. The arguments presented by VDH&T
have also been endorsed by statements presented in writing or
orally at the hearing by the Federal Highway Administration, U.S.
Department of Transportation, the Associated General Contractors of
America, Inc., the Virginia Road Builders [5]
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[6] Association, the American Road and Transportation Builders
Association, the Virginia Chapter Associated Builders and Contractors,
and the Chambers of Commerce of Arlington and Fairfax Counties,
respectively.
In view of all parties' reliance on the statements of the
Secretarys of Transportation the Wage Appeals Board has given
particular attention to these statements. Former Secretary of
Transportation William T. Colemen, Jr. in his January 5, 1977,
decision on Interstate Highway 66 strongly favored the desirability
of completing Metro's K line and locating it in the median of I-66.
However, he states:
"I realize that it is impossible to obtain at this time,
a legal commitment by the Governor of Virginia or the
Washington Metropolitan Area Transit Authority (WMATA) to
complete the Metro "K" line. Nevertheless, in view of
this decision to approve I-66, I will expect the
Governor, the agencies of the Commonwealth, and the
Virginia legislature to honor the moral obligation to
advance the completion of Metro."
Furthermore, present Secretary of Transportation Brock Adams in his
March 30, 1977, letter to the Chairman of the Joint Policy Steering
Committee, Metrorail Alternatives Analysis Study, Metropolitan
Washington Council of Governments, has reaffirmed the I-66 decision
of former Secretary Coleman, but in response to the [6]
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[7] Council of Government's inquiry if this decision requires the
construction of the entire Metro K line route in the median of I-66,
he states:
"Former Secretary Coleman's decision reflected his view
that the K Line of Metro should be completed. Some of
the conditions in his I-66 decision were included to
facilitate that goal. Specifically, certain conditions
require construction of the K Line. Nevertheless, there
is nothing in the Department's I-66 decision that would
require the Washington Metropolitan Area Transit
Authority to construct the entire K Route."
It is also noted in Mr. Adams' letter that the authorities of
Fairfax County have requested alternative analyses on the K line.
According to VDH&T's brief there are six alternatives applicable to
the K line and as presently viewed, four would turn all or a
portion of the median into bus lanes for express bus service.
After a careful analysis of the oral testimony presented at
the hearing and a study of the briefs submitted by the interested
parties the Wage Appeals Board finds that contract I-66-1(100)69
calls for the construction of a dual four-lane highway with a
median strip that may be used by a ground-level rail line, bus
lanes or neither, in which case the median will be landscaped.
The decision of Secretary Coleman and the March 30, 1977,
letter of Secretary Adams clearly show that the construction [7]
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[8] of I-66 is not contingent upon the construction of the Metrorail
line in the median even though such a result is desired. Decisions
as to what use will be made of the median will be made by the
Commonwealth of Virginia and local authorities. As of this date,
these decisions have not been made.
Much has been made of the below ground-level work in the
median called for in the contract. However, information presented
to the Board indicates that this work is similar to, and less
complex than that to be performed under the road portion of the
contract. It was stated at the hearing that items being placed in
the median which will serve possible Metro use amount to no more
than 8.5 percent of the contract cost. It must be admitted that
this is a minor part of the total contract.
It has been stated that this contract should be considered
as a part of the overall Metro K line project. This position is
inconsistent with the past practices of the Wage and Hour Division.
The Division has not in the past issued decisions on more than a
contract by contract basis. To do so would be to ignore the
immediate locality requirement of the Federal Aid Highway Act of
1956 and would be contrary to the Wage Appeals Board decisions
relating to construction for the Metropolitan [8]
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[9] Atlanta Rapid Transit Authority in Georgia. (WAB 75-05)
Also the theory presented would apply only if there was substantial
Metro construction to be performed under this contract. As stated
above, as of this date there is only a minor part.
The Board has no way of anticipating what the final decisions
will be as to how the median will be used. Attorneys and other
representatives of the Commonwealth of Virginia stated that no
decision has been made in this respect.
Facts must be accepted and considered as they exist today.
Contract I-66-1(100)69 is for construction of a four-lane highway
with a median strip. The median will have sublevel work similar to
but less complex than will be required for the dual roadway. Under
what standards can it be said that construction of the median that
may be used by buses or possibly merely landscaping is heavy
construction? It is true that the median may be used for Metrorail
lines but there is no assurance at this time that it will be so
used.
The Board does not find any basis to support the positions of
the BTD-BTC and the Wage and Hour Division. In fact past practice
of the Wage and Hour Division is contrary to their position in this
case as it relates to the overall concept on Metro construction.[9]
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[10] The Board wishes to emphasize that this decision applies
only to this contract and at this time. It is entirely possible
that subsequent contracts will be affected by decisions concerning
Metro's progress that may require a different approach.
In view of these findings the Assistant Administrator is
requested to issue only highway rates for this project upon
receipt of a new Request for Wage Determination from the Virginia
Department of Highways and Transportation.
BY ORDER OF THE BOARD
Craig Bulger, Executive Secretary
Wage Appeals Board [10]
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