|
<![CDATA[
CCASE:
69TH STREET WASTEWATER & TREATMENT PLANT
DDATE:
19780303
TTEXT:
~1
[1] WAGE APPEALS BOARD
UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, D. C.
In the Matter of
69TH STREET WASTEWATER
TREATMENT PLANT
WAB Case No. 77-29
Wage Rates Applicable to
Construction of 69th Street Dated: March 3, 1978
Wastewater Treatment Plant,
EPA Proj. No. 0-48-1205,
Houston, Harris Co., TX
APPEARANCES: Charles W. Stuber, Esquire, Joe F. Canterbury, Jr.,
Esquire for Texas Heavy, Municipal and Utilities
Branch and Texas Highway-Heavy Branch of the
Associated General Contractors of America, Inc.
Terry Yellig, Esquire for Building and Construction
Trades Department, AFL-CIO and Houston-Gulf Coast
Building and Construction Trades Council
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 Heavy, Municipal and Utilities Branch and Texas
Highway-Heavy Branch of the Associated General Contractors [1]
~2
[2] seeking review of the Assistant Administrator's determination that
building wage rates apply to a portion of a structure at the 69th Street
Wastewater Treatment Plant, Harris County, Texas.
The structure under consideration is being built under one
contract with the assistance of the United States Environmental
Protection Agency (EPA). It will include filter beds, contact
chambers and an administration building. In order to utilize the
building site to the utmost the administrative offices will rest on
a concrete slab supported by pillars which are raised above the
walls of the filter beds and contact chambers below. The beds and
chambers extend out on either end of the administration building
and therefore cover a greater area than the building.
After the Assistant Administrator gathered information from
various parties interested in the construction of the project, he
advised EPA that building construction rates should be applied to
the administration building, the concrete slab on which it rested
and construction of the filter beds and contact chambers located
directly below the building. This was done because the Wage and
Hour Division was advised that the pillars supporting the building
also extended into and supported the filter beds and that the
chamber walls were designed to be stronger than otherwise would be
necessary to support the building on top of them. Heavy
construction wage rates were applied by the Wage and Hour [2]
~3
[3] Division to those portions of the contact chambers and filter beds
which were not below the building slab.
Petitioners protested the Assistant Administrator's
decision, and on November 7, 1977, the Administrator denied
Petitioners' request for reconsideration.
Petitioners maintain that only the administration building
and the slab which supports it to an elevation of 26.25 should be
classified as building construction and that everything below that
elevation should be characterized as heavy construction since the
modifications to the walls of the filter beds and contact chambers
to support the administration building were relatively
insignificant. They point out that there is no difference in the
construction of these walls when they are under the building for
which Wage and Hour determined building rates, and the walls of the
chambers and beds which extend out on either side of the building
where Wage and Hour determined that heavy wage rates apply.
Further, Petitioners point out that the building will cost
$3,000,000 to construct and the filter beds and contact chamber
will cost $11,000,000 to construct. Their point is that it is
unreasonable to consider that a $3,000,000 building would have an
$11,000,000 foundation. Finally, it is the Petitioners' position
that the Wage Appeals Board has frequently approved the use of two
sets of rates (building and heavy) for sewage and wastewater
treatment plants where the types of construction can be segregated
and they maintain that [3]
~4
[4] the heavy rates should be applicable to all construction of the
filter beds and contact chambers which are clearly distinguishable from
the administration building located directly above. They state that EPA
supports their position in this appeal and a letter from EPA, Region IV
(Exhibit B to Petitioners' brief) states that the character of
construction of the contact chambers and filter beds is not altered by
the fact that the plant administration building is to be built above
them as opposed to constructing the administration building at some
other site.
The Building and Construction Trades Department, AFL-CIO,
and the Houston Gulf Coast Building and Construction Trades
Council (BTD-BTC) maintain that the foundations of the building
are also serving an additional function of containing filter
beds and contact chambers. For this reason it is their position
that building construction wage rates should apply to the entire
structure and they cite the Board decision, Brown's Mill Road Bus
Facilities, WAB Case No. 75-11 (April 19, 1976) to support their
position.
A hearing on this matter was held on January 25, 1978, and
all interested parties were present and partic[i]pated.
The facts in this case have not been disputed in the various
briefs which have been filed. Also, it is clear that the Wage and
Hour Division considers filter beds and contact chambers as [4]
~5
[5] heavy construction and the administration building as building
construction in treatment plants where the building is not situated as
planned here. (See p. 5, Statement for Assistant Administrator) Wage
and Hour also admits that this Board has repeatedly recognized that
treatment plants generally contain substantial amounts of both heavy
construction and building construction, and under those circumstances,
it is appropriate to issue both building and heavy construction wage
rate schedules. See South Cobb Waste Water Treatment Plant, WAB Case
No. 76-19, (November 19, 1976), and Lower Potomac Pollution Control
Plant, WAB Case No. 77-20 (September 30, 1977).
The Wage and Hour Division states that it originally
determined that heavy rates should apply to the filter beds and
contact chambers because it had been advised that beds and chambers
were not in any way designed differently to accom[m]odate the
building and because Wage and Hour was not then aware that the
pillars supporting the building slab would extend into and become
a part of the beds and chambers. It was only after Wage and Hour
became aware that the chamber and bed walls were specifically
designed to support the building in that the pillars contained more
concrete and steel and were greater in number than would otherwise
be required that Wage and Hour changed its position and considered
that the beds and chambers lying under the building were actually
foundations for the building and should be considered to be
building construction also. [5]
~6
[6] In view of the Wage and Hour Division's assertion that this
was the basis for changing their categorization of the filter beds
and contact chambers the Wage Appeals Board paid careful attention
to the briefs and the testimony at the hearing relating to the
substance of the changes in the beds and chambers which were
required by placing the building above them. It was stated in the
Petition for Review (p. 6) and at the hearing (T. pp. 16, 26) that
the changes made in the existing vertical columns and the addition
of a few columns by incorporating additional steel and additional
concrete cost approximately $69,000 on a project estimated to cost
$14,000,000. This is about one-half of one percent of the total
cost of the project. Furthermore, there was testimony at the
hearing that there is no difference in construction of the beds and
chambers for the portions that extend beyond the building lines of
the administration building from those portions under the building
(Tr. p. 23) and further testimony that in the structures, although
some of the piers were changed in size or amount of steel therein,
it did not change the manner in which the structures were
constructed. (Tr. p. 38) There was no testimony at the hearing
that tended to refute the statement of the City of Houston Engineer
concerning his judgment that the changes made in the beds and
chambers were minimal. [6]
~7
[7] It seems to the Board that the facts elicited at the
hearing did not support the Wage and Hour Division's statements
that the changes in the design and construction resulting from the
addition of the slab and building on top of the beds and chambers
were a sufficient basis for its changing its characterization of
the beds and chambers from heavy construction to building
construction. If the design changes resulting to the structures by
the addition of the building had been demonstrated to be
substantial there might be merit to Wage and Hour's position.
Where the difference is insignificant, however, it cannot be held
to change the traditional characterization of the construction.
In view of the fact that construction on wastewater and
sewage treatment plants has been frequently recognized by Wage and
Hour to be segregated between heavy construction and building
construction, and that on this project the division of the types of
construction can readily be made (and in fact, it was previously
determined by Petitioners, EPA and Wage and Hour to be at elevation
26.25), the Wage and Hour Division should apply the heavy
construction wage rates to all construction below elevation 26.25,
and building construction wage rates from elevation 26.25
upward. [7]
~8
[8] Furthermore, it should be apparent that if the Board cannot
accept Wage and Hour's basis for calling a portion of the filter
beds and contact chambers building construction, it also cannot
accept the position put forth by BTD-BTC that the entire project
should be considered building construction. It seems to the Board
that its decision in [] Brown's Mill Road Bus Facility, supra, does
not require it to consider the beds and chambers and similar
construction at treatment plants as incidental to the building as
was the case of the bus parking lot at the bus repair garage in
Brown's Mill, despite the large size of the lot. Particularly this
is so where there has been a common practice of dividing these
plants between building and heavy construction and the structure
can be easily divided into its building and heavy construction
components. Filter beds and contact chambers in this area are
recognized as heavy construction and have traditionally had heavy
construction rates applied to them.
BY ORDER OF THE BOARD
Craig Bulger, Executive Secretary
Wage Appeals Board [8]
]]>
|
