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<![CDATA[
CCASE:
TEXAS HIGHWAY-HEAVY BRANCH
DDATE:
19771230
TTEXT:
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[1] WAGE APPEALS BOARD
UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, D. C.
In the Matter of
TEXAS HIGHWAY-HEAVY BRANCH WAB
-- PAVING AND INCIDENTAL
UTILITIES Case No. 77-19
Review of Davis-Bacon Wage
Decision 77-TX-4174 through Dated: December 30, 1977
4189 and related decisions
APPEARANCES: Thompson Powers, Esquire Ronald S. Cooper, Esquire
Christopher T. Lutz, Esquire for Texas Highway-Heavy
Branch, Texas Heavy, Municipal & Utilities Branch of
the Associated General Contractors of America
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 the Texas Highway-Heavy Branch and the Texas Heavy, Municipal
and Utilities Branch of the Associated General Contractors of [1]
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[2] America. Petitioner has requested review of decisions by the
Assistant Administrator of the Wage and Hour Division affecting
a series of wage determinations for building construction
recently issued in the State of Texas which omit rates for
"Paving and Utilities incidental to General Building Construction".
The effect of this action is to change a practice followed in
Texas by the Department of Labor for many years: that is, it
has been the practice on building construction projects to issue
building construction wage rates to apply to the building and
site work, and to issue a different schedule for the paving and
utilities incidental to these buildings. Now the Department
is applying the building construction wage rates to all phases
of building projects.
The Wage and Hour Division stated in its brief that in
most areas of Texas for a number of years it was the prevailing
practice to pay wages other than the wages prevailing for building
construction for incidental paving and utilities on building
construction projects. Wage and Hour determined that the wage
rates for this work were so close to the prevailing heavy-highway
wage rates that separate surveys and wage rate schedules were
not required. Where Wage and Hour determined that the rates
prevailing for incidental paving and utilities were building [2]
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[3] rates or rates other than the heavy-highway rates, Wage and Hour
issued wage determinations accordingly. Now the Wage and Hour Division
advises that it based its decision to change its procedures on the
Board's decisions in Van Ness Street, WAB No. 76-11 (January 27, 1977)
and Lower Potomac Pollution Control Plant, WAB Case No. 77-20 (September
30, 1977). Wage and Hour was supported in its position by the Building
and Construction Trades Department,AFL-CIO.
The Petitioner's primary objection to the action of the
Assistant Administrator is that it was without factual basis and
contrary to the payment practices prevailing in Texas as stated by
the Department of Labor.
A hearing on the issues was held on November 18, 1977. All
interested parties were present.
After an analysis of the oral testimony presented at the
hearing and a study of the briefs submitted by the interested
parties, it appears to the Board that the Department of Labor has
in this case and in other recent cases before the Board given
insufficient weight to the plain language of the Davis-Bacon Act
and the related statutes. The Act states, in part, that the
Secretary will determine wage rates that are based on wages
. . . prevailing for the corresponding classes of
laborers and mechanics employed on projects of a [3]
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[4] 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 . . .
The operation of the statute should be to reflect the local wages,
not to establish new wage payment practices. In this and the other
recent cases it appears that the Assistant Administrator's attempts
to standardize procedures have resulted in the introduction of new
wage rates into the applicable area rather than reflecting those
wage rates already there.
None of the parties is disputing the fact that the projects in
question are all building construction. The Department has not
disputed the fact that if a survey of building projects were
undertaken in most areas of Texas the survey would show that
different rates are paid for the construction of paving and
utilities incidental to the buildings than those paid on the
construction of the building. All parties recognize that the wage
rates now being issued by the Assistant Administrator do not
reflect the wage rates now being paid in Texas on building
construction. The record indicates that in Texas one set of rates
prevail for building construction and a different set of wage rates
prevail for the incidental paving and utilities related thereto.
The wage determinations issued by the Department do not reflect
this. They now show one and the same sets of rates for the entire
project. [4]
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[5] The Department has cited this Board's decision in Van Ness
Street, supra, as the basis for changing its long standing practice
in Texas of issuing the heavy-highway wage rates for paving and
utilities incidental to building construction. The Department is
using Van Ness Street to characterize those projects which are of
a character similar in a construction sense. (See p. 6 in the
Statement for the Assistant Administrator.) But no question has
been raised by any parties in these proceedings that there is a
need to characterize projects of a character similar. All agree
this is building construction and presumably there would be no
difficulty in identifying those projects to survey, if a survey
had been undertaken.
It seems to the Board that the Department is misconstruing
the meaning of Van Ness Street. This decision changed the practice
of using wages paid as the basis of segregating high-rise
residential building construction from the whole of building
construction in Washington, DC. In Texas, it appears from the
record and the briefs that [*] all [*] building construction has
for many years followed a practice of paying a different scale of
wage rates for the paving and utilities. There is nothing in Van
Ness Street that says the Department should not recognize a
practice that prevails on all building construction over an entire
State. [5]
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[6] Furthermore, in Lower Potomac Pollution Control Plant,
supra, the Board disagreed with the petitioner's position that wage
rates for water and sewage treatment plants should be based on an
area practices survey of similar plants in Fairfax County,
Virginia, resulting in a single set of wage rates. The Board saw
this as an effort to change the categorization of a project solely
on the basis of wages being paid on similar plants. The Board
rejected this proposal, stating at page 2: ". . . it is not
necessary to resort to an area practice survey to determine the
appropriate categorization of the project . . . . The area
practice with respect to wages could not convert what is clearly
one category of construction into another category." The wage
schedules being recognized for heavy and building construction
in Fairfax County were not challenged in that appeal, but it is
apparent the Board felt that the wage data from the survey could
have been divided between its heavy and building components and
included in surveys of each type construction. In that case the
Board was faced with a project that was both heavy and building
construction. In this case the projects are solely building
construction. The incidental work does not become heavy-highway
because lower rates are paid on it. It is still considered to be
building construction and the heavy-highway designation is merely
a shorthand label. [6]
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[7] To comment directly on what has been done in Texas, it
appears to the Board that by deleting the schedules for the
incidental paving and utilities, the wage rate information
represented by the laborers and mechanics who have been performing
this work on building construction in Texas in the past no longer
is represented in the recent wage determinations. The result of
the Department's action of merely omitting these schedules is that
the determinations do not reflect the local wage practices that the
Department admits prevails and has prevailed for many years.
(Statement for the Assistant Administrator p. 5)
It is generally stated in the Statement for the Assistant
Administrator, and was repeated at the hearing that there has been
no survey of the classifications engaged in incidental paving and
utilities for at least 5 years. The Department's deletion of the
wage rates without a survey to support it leaves the Department in
an untenable position. Furthermore, it seems to the Board that
inclusion of wage data with respect to these employees with data
collected solely from building construction may adversely effect
the wage rates of some of the classifications contained in the
building construction schedules. It was stated at the hearing that
some of the classifications contained in the incidental paving and
utilities [7]
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[8] schedule are not duplicated in the building schedules, which results
in no wage rates being issued for these employees at all.
In view of this, the Board directs the Assistant
Administrator to reissue the appropriate wage determinations and
include the wage schedules for incidental paving and utilities
on building construction therein. Then if there is a question
as to whether the wage rates contained in the determinations
are accurate, the Department should survey building construction in
its usual manner to update its wage rate information. With
reference to Petitioner's request that the Assistant Administrator
be directed to exclude from future wage surveys those projects
involving incidental paving and utilities construction discussed
herein, the Board does not concur with this request. The Board has
resisted taking a position, as recently as [] Mobile Bay Bridge,
WAB Case No. 77-2, October 21, 1977, that wage data from a validly
awarded project should not be utilized in subsequent wage surveys
due to alleged deficiencies in the wage rates determined for the
project. The Board sees no reason to change its position in this
case.
BY ORDER OF THE BOARD
Craig Bulger, Executive Secretary
Wage Appeals Board [8]
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