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<![CDATA[
CCASE:
VERY LARGE ARRAY PROGRAM
DDATE:
19780109
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[1] WAGE APPEALS BOARD
UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, D. C.
In the Matter of
VERY LARGE ARRAY PROGRAM
WAB Case No. 77-18
The Prevailing Wages for Rail
Construction in Phase IV of the Dated: January 9, 1978
Very Large Array Program, National
Radio Astronomy Observatory, Socorro
APPEARANCES: Thompson Powers, Esquire, Ronald S. Cooper, Esquire
Randolph J. May, Esquire, for Associated
Universities, Inc.
Terry Yellig, Esquire for Building and Construction
Trades Department, AFL-CIO
George E. Rivers, Esquire, Gail V. Coleman, Esquire
for the Wage and Hour Division, U.S. Department of
Labor
Decision by: Alfred L. Ganna, Chairman, William T. Evans, Member,
Thomas M. Phelan, Member
DECISION OF THE WAGE APPEALS BOARD
This case is before the Wage Appeals Board on the petition
of Associated Universities, Inc., (AUI), seeking review of a
decision by the Assistant Administrator that the heavy construction [1]
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[2] wage rate schedule contained in Wage Decision No. NM 77-4116
(42 FR 31094, June 17, 1977) is applicable to construction of Phase
IV of the Very Large Array project in Socorro and Catron Counties,
New Mexico. It is the position of Petitioner that the highway and
light engineering schedule contained in Wage Decision No. NM
77-4103 (42 FR 26169, May 20, 1977) is the applicable schedule of
wage rates.
The Very Large Array (VLA), estimated to cost $78 million
and involving construction amounting to $18-20 million, is a radio
telescope complex being erected by the National Radio Astronomy
Observatory, operated by Associated Universities, Inc., under
contract with the National Science Foundation. VLA will be an
array of twenty-seven movable radio telescopes distributed over a
Y-shaped track, each leg of which will be over 13 miles in length.
The telescopes will move in and out over the legs of the Y, resting
on concrete foundations at various places along the legs to create
different foci on the skies. Phase IV of the project will consist
of laying approximately 30,000 lineal feet of double track rails,
including excavation, subgrade compaction, ballast and rail,
erection of five triangular antenna foundations, consisting of
reinforced concrete pedestals, grade beams, and belled piers about
20 to 35 feet in depth, and 15,000 lineal feet of underground
electrical lines, including transformers and grounding at each
antenna station. [2]
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[3] Although Phase IV of the VLA was first advertised with
the "Street, Highway, Utility and Light Engineering Construction"
wage rates obtained from the Federal Register, the Assistant
Administrator advised the National Science Foundation that railroad
construction was classified as "Heavy Engineering Construction"
and that the wage decision containing these rates should be used
for Phase IV.
Following a protest of the heavy engineering wage rates by
representatives of Petitioner the Assistant Administrator agreed
to conduct a survey to determine if highway and light engineering
or heavy engineering wage rates were paid on rail construction
in New Mexico. In this survey, wage rate data from VLA's Phase III
construction was excluded by the Wage and Hour Division because
they believed that the project was built with the wrong schedule
of wage rates, and therefore should not influence the survey being
made. Wage and Hour has characterized the results of this survey
as inconclusive, but stated that heavy engineering wage rates were
paid to a majority of workers in virtually all classifications.
Wage and Hour therefore confirmed the heavy engineering rates for
Phase IV. There were subsequent requests by Petitioner for
reconsideration based on additional projects and information.
Ultimately, on August 3, 1977, the Assistant Secretary for
Employment Standards advised Petitioner that the final request for
reconsideration was denied. [3]
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[4] All parties to this appeal agree that the Phase IV VLA
construction is primarily railroad construction and can be
classified as heavy construction. Since there are the two
categories of wage rates recognized by the construction industry
in New Mexico, the Street, Highway, Utility and Light Engineering
schedule (light engineering) and the Building and Heavy Engineering
schedule (heavy engineering), the parties have throughout this
appeal directed their arguments to fitting the VLA project into one
of the two categories. However, since significant elements of
heavy construction were contained in both the light and heavy
engineering schedules, the determination of railroad construction
as heavy construction did not resolve the issue.
The Department of Labor's position that the heavy engineering rates
apply to VLA is based on the fact that railroad construction is included
in the negotiated collective bargaining agreement for heavy engineering
in New Mexico, although the State's definitions of the categories of
construction promulgated for use with the States' prevailing wage law do
not include railroad construction in either category. The Department's
area practice survey conducted statewide for railroad construction to
determine in which of the two wage categories railroads had been built
was termed "inconclusive" by the Department. It appeared, in general,
that the laborers on the railroad projects the Department considered
were paid rates at or near the light engineering schedule, and the power
equipment [4]
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[5] operators and truck drivers were paid rates at or near the heavy
engineering schedule. Petitioners pointed out that by sheer numerical
count, since there are many more laborers employed on railr[oa]d
construction than other employees, this should require payment of the
light engineering rates. After analyzing its survey the Department
concluded that an area practice survey was no longer valid anyway,
relying on the Board's decision in Van Ness Street, WAB Case No. 76-11
(January 27, 1977).
The Department also expressly excluded wage data from Phase
III of VLA which had been constructed within the time period during
which the survey was conducted. The Department did this because
the light engineering wage rates had been used in advertising for
bids for Phase III and since the Department considered this to be
the wrong schedule it considered wage data from Phase III to be
invalid. It was admitted that the Phase III construction, which
was identical construction to Phase IV but about three times as
large, is the only rail construction in Socorro and Catron
Counties.
The Building and Construction Trades Department, AFL-CIO, has
basically supported the position of the Wage and Hour Division in
its presentation and particularly emphasized that recent decisions
of this Board require the issuance of the heavy engineering wage
rates for Phase IV.
The Petitioners dispute all the arguments presented by the
Wage and Hour Division. Petitioners point out that the State of [5]
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[6] New Mexico has issued light engineering rates for railroad
construction in recent wage determinations. The State has also
utilized wage data from railroad construction, and particularly
Phase III wage data, in its wage surveys to establish wage rates
for light engineering. Petitioners are basically contesting the
Department's application of heavy engineering wage rates to Phase
IV on the basis that they are not prevailing in the county or on
rail construction statewide. They dispute the exclusion of wage
data produced by Phase III from the Department's consideration.
This is particularly objected to because the Department did not
question the light engineering wage rates at the time Phase III was
awarded. It was apparent that AUI went to considerable effort to
consult with knowledgeable industry officials to determine the
correct schedule of wages for railroad construction, and it is also
alleged that the Department of Labor was contacted to see if there
was any objection to the light engineering rates for Phase III. It
is clear from the record that the Department's representative was
aware that AUI was proposing to use the light engineering schedule
for Phase IV since he advised AUI that their wage determination was
obsolete and did not caution Petitioner that they were applying the
wrong schedule.
Petitioners claim the wage data in the area practice survey
conducted by the Department do not support the heavy engineering [6]
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[7] wage rates. Instead, they say, Wage and Hour should have
based its decision upon the wage rates resulting from its survey.
The Petitioners distinguished the Wage Appeals Board's decisions in
Van Ness Street, supra, and Lower Potomac Treatment Plant, WAB
77-20, Sept. 30, 1977, which the Building and Construction Trades
Department relies on in its brief and arguments. Petitioners
strongly rely on this Board's decision in Mobile Bay Bridge,
WAB 77-02, October 21, 1977, as a basis for including wage data
from Phase III in the wage survey for Phase IV.
A hearing on this appeal was held before the full Board on
December 8, 1977, and all interested parties were present and
participated.
For the third time in recent weeks the Board is considering a
case in which it appears that the Assistant Administrator is not
giving sufficient consideration to the plain language of the Davis-
Bacon Act to base wage rates for proposed projects upon ". . . the
wages . . . 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
subdivisions of the State in which the work is to be performed ...
It appears here, as in two earlier decisions, WAB 77-19 and WAB
77-23, that the Board is told that in reliance upon the Board's [7]
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[8] decisions in Van Ness Street, supra, and Lower Potomac
Sewage Treatment Plant, supra, certain wage rates have been
determined that do not reflect wages paid on similar projects in
the locality. Neither of the above cited decisions held that Wage
and Hour is justified to look all over the State to find area
practice, to categorize projects, or to set wage rates. It was
admitted that no survey of heavy construction in the vicinity of
the proposed contract has been conducted.
It seems to the Board that the Mobile Bay Bridge case, supra,
should have settled the question in this case that wage rate
information from Phase III should be included in any survey as long
as the project falls within the time period from which data to be
taken. In that case we said:
. . . the Department cannot be allowed to disregard wage
rate data from the bridges, . . . because it disagreed
with the use of the highway wage determination. . . . It
seems to the Board that when the Department gave
contracting agencies the right to obtain the required
wage determinations from the Federal Register and to
exercise their judgment as to the appropriate schedule
for a particular project, the Department should give due
weight to the agency's decision.
In this case Petitioner appears to have gone to considerable length
to make a responsible decision as to the appropriate wage rates
for Phase III. This even included consultation with
representatives of the Department of Labor who did not question
their choice. The [8]
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[9] wage rate data from Phase III should have been included in any type
of survey Wage and Hour conducted.
The Board heard considerable argument from all sides urging
that either of two wage schedules be determined for this project.
It seems to the Board that the parties here are improperly arguing
the use of the labels of "heavy engineering" and "light
engineering" when it is very possible that the prevailing wage
rates for railroad construction in Socorro and Catron Counties may
not be reflected in either of these wage schedules. In such a case
it is essential that the Department return to the fundamentals of
the statutory requirements and survey projects of a character
similar to determine the prevailing wages.
In view of this, the Board directs the Assistant
Administrator to conduct a survey in accordance with the usual
Davis-Bacon procedures of heavy construction which is of a
character similar to Phase IV of the Very Large Array. This survey
should specifically include wage data from Phase III of VLA. The
survey should start in Socorro and Catron Counties and be expanded
to adjacent counties only as is necessary to obtain sufficient
classifications or wage information to provide an adequate survey.
Upon completion of the survey, the Assistant Administrator should
provide Petitioners with a new wage determination for Phase IV of
the VLA project. The Petitioner has indicated that this project
has been [9]
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[10] considerably delayed pending this review[;] it is urgent that the
Wage and Hour Division conduct its survey and issue the new wage
determination as soon as possible.
BY ORDER OF THE BOARD
Craig Bulger, Executive Secretary
Wage Appeals Board [10]
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