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<![CDATA[
CCASE:
E. LAKE STATION SITE IMPROVEMENTS & PARKING LOTS
DDATE:
19780320
TTEXT:
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[1] [78-05TEL.WAB]
TELEGRAPHIC MESSAGE
NAME OF AGENCY: U.S. DEPARTMENT OF LABOR
OFFICE OF THE UNDER SECRETARY
WAGE APPEALS BOARD
ACCOUNTING CLASSIFICATION: 6165-1-M-019-75000-2330
DATE PREPARED: March 20, 1978
NAME: CRAIG BULGER
TO: ALL PERSONS ON THE ATTACHED LIST
RE: DECISION OF THE WAGE APPEALS BOARD WAB CASE NO. 78-05
EAST LAKE STATION SITE IMPROVEMENTS AND PARKING LOTS
[WAGE RATES APPLICABLE TO CONSTRUCTION OF], DE KALB CO.,
GA.
BEFORE: ALFRED L. GANNA, CHAIRMAN, THOMAS PHELAN, MEMBER
TWO PETITIONS HAVE BEEN PRESENTED TO THE WAGE APPEALS BOARD,
ONE BY THE GEORGIA DEPARTMENT OF TRANSPORTATION AND ONE JOINTLY BY
THE GEORGIA BRANCH OF THE ASSOCIATED GENERAL CONTRACTORS OF
AMERICA, INC., AND THE GEORGIA HIGHWAY CONTRACTORS ASSOCIATION,
INC., SEEKING REVIEW OF THE DECISION OF THE ASSISTANT
ADMINISTRATOR, WAGE AND HOUR DIVISION, DATED FEBRUARY 27, 1978,
DETERMINING THAT BUILDING CONSTRUCTION WAGE RATES ARE APPLICABLE TO
THE PROPOSED CONSTRUCTION AT MARTA'S EAST LAKE STATION SITE
IMPROVEMENTS AND PARKING LOTS.
TWO MOTIONS TO DISMISS ONE OR BOTH PETITIONS WERE RECEIVED
BY THE BOARD. ONE MOTION WAS SUBMITTED JUST [1]
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[2] BEFORE THE HEARING. BY THE TIME OF THE RECEIPT OF THESE
MOTIONS THE PARTIES HAD ALREADY GONE TO THE EXPENSE AND TAKEN
THE TIME TO DEAL WITH THE APPEAL ON THE MERITS, THEREFORE THE
BOARD CONSIDERS IT ONLY FAIR TO SIMILARLY DEAL WITH THE MERITS
OF THE CASE. THIS BOARD, IN THE PAST, HAS NOT BEEN OVERLY STRICT
IN REQUIRING A SPECIFIC SHOWING OF INTEREST, BUT RATHER HAS BEEN
WILLING TO HEAR THE POSITIONS OF ALL WHO TAKE THE TIME AND HAVE
THE INTEREST TO PRESENT THEM.
BECAUSE OF THE URGENCY OF REVIEWING THIS DECISION BEFORE
THE SCHEDULED BID OPENING BY MARTA, PETITIONERS AGREED TO A HEARING
BY LESS THAN THE FULL BOARD. UPON CONSIDERATION OF THE DOCUMENTS
FILED IN CONNECTION WITH THE APPEAL, A HEARING BY TWO MEMBERS OF
THE BOARD WAS HELD ON MARCH 16, 1978.
THE CONTRACT FOR THE TWO PARKING LOTS (CE 321) PROVIDED FOR
THE FOLLOWING CONSTRUCTION: CLEARING, GRADING, PAVING,
CONSTRUCTION OF DRAINAGE FACILITIES AND CERTAIN [2]
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[3] PUBLIC AND PRIVATE UTILITIES, INSTALLATION OF LIGHTING
FACILITIES, LANDSCAPING, AND PROVIDING INDICATED
APPURTENANCES, FOR A TOTAL COST OF $860,000. WAGE AND
HOUR'S BASIS FOR DETERMINING BUILDING RATES FOR THE
PROJECT WAS THAT CE-321 WAS INCIDENTAL TO THE CONSTRUCTION
OF THE $4,250,000 EAST LAKE STATION (CE-320) WHICH
MARTA CURRENTLY IS BUILDING WITH A BUILDING CONSTRUCTION
WAGE RATE SCHEDULE.
THE PETITIONERS' POSITION IS THAT THE SITE IMPROVEMENT AND
PARKING LOTS ARE NOT INCIDENTAL TO CE-320, THAT IT IS A
SEPARATE CONTRACT IN AND OF ITSELF, AND THAT THERE IS NO
LEGAL AUTHORITY FOR THE SO-CALLED INCIDENTAL RULE BEING
APPLIED BY WAGE AND HOUR. FURTHERMORE, PETITIONERS CONSIDER THE
WORK REQUIRED FOR CE-321 AS SIMILAR TO HIGHWAY CONSTRUCTION AND
THEREFORE BELIEVE THE PROJECT SHOULD BE BUILT AT HIGHWAY
CONSTRUCTION WAGE RATES.
THE NORTH GEORGIA BUILDING TRADES COUNCIL AND THE BUILDING
AND CONSTRUCTION TRADES DEPARTMENT, AFL-CIO, [3]
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[4] GENERALLY SUPPORTED THE POSITION OF THE WAGE AND HOUR DIVISION
IN THIS CASE.
AT THE HEARING IT WAS STIPULATED BY THE DEPARTMENT OF
LABOR AND PETITIONERS THAT CONTRACT CE-321 WOULD BE SIMILAR
TO A HIGHWAY PROJECT IF IT WERE CONSIDERED IN ISOLATION
AND UNRELATED TO THE EAST LAKE STATION.
THE SOLE QUESTION TO BE RESOLVED IN THIS CASE IS WHETHER
THE PARKING LOTS SHOULD BE CONSIDERED INCIDENTAL TO THE MARTA
STATION. IT SEEMS TO THE BOARD THAT THE INCIDENTAL "RULE" IS NOT
SOMETHING NEW IN DAVIS-BACON ADMINISTRATION WHICH CHANGES THE AREA
PRACTICE, AS WAS THE CASE IN THE TEXAS INCIDENTAL PAVING DECISION
(WAB 77-19, DEC. 30, 1977). AREA PRACTICE WAS SPECIFICALLY
EXCLUDED FROM CONSIDERATION IN THIS CASE BY THE PARTIES. THE "RULE"
HERE IS, IN REALITY A WAGE AND HOUR POLICY WHICH HAS BEEN IN EFFECT
FOR A SUBSTANTIAL PERIOD OF TIME AND HAS BEEN REVIEWED AND APPROVED
ON MORE THAN ONE OCCASION BY CONGRESSIONAL OVERSIGHT COMMITTEES.
THAT POLICY HAS ALSO BEEN REVIEWED BY THIS BOARD [4]
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[5] AND ITS APPLICATION WAS GIVEN APPROVAL IN THE BROWN'S MILL
CASE (WAB 75-11, APRIL 19, 1976) AND OTHER PUBLISHED DECISIONS
OF THE BOARD. THE BOARD, UNDER THESE CIRCUMSTANCES, DOES NOT
VIEW THIS POLICY AS INVALID UNDER THE ADMINISTRATIVE PROCEDURE
ACT, AND SPECIFICALLY FINDS IT TO BE APPROPRIATE UNDER THE DAVIS-
BACON ACT. THE DAVIS-BACON ACT REFERS TO PROJECTS OF A CHARACTER
SIMILAR, NOT SIMILAR WORK AS THE BASIS OF DETERMINING PREVAILING
WAGE RATES. WAGE AND HOUR MUST NECESSARILY DETERMINE WHAT IS THE
PROJECT IN CARRYING OUT ITS STATUTORY RESPONSIBILITY. THE BOARD
FINDS THAT WAGE AND HOUR IS NOT CONSTRAINED IN LOOKING SOLELY AT
THE CONTRACT DOCUMENTS PRESENTED BY A CONTRACTING AGENCY IN ORDER
FOR IT TO DETERMINE THE PROPER CHARACTERIZATION OF A PROJECT.
IT SEEMS TO THE BOARD THAT CONTRACT CE-321 IS NOT A "FREE
STANDING" CONTRACT UNRELATED TO CONTRACT CE-320. [5]
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[6] NOR DOES THE BOARD VIEW CE-321 IN THE SAME LIGHT AS THE
WATER POLLUTION CONTROL PROJECTS WHICH HAVE SUBSTANTIAL
AMOUNTS OF HEAVY AND BUILDING CONSTRUCTION AND WHERE TWO
SCHEDULES OF WAGE RATES ARE FREQUENTLY ISSUED BY THE WAGE
AND HOUR DIVISION.
IN VIEW OF THESE FINDINGS THE BOARD CONSIDERS THE PARKING
LOTS TO BE INCIDENTAL TO THE MARTA STATION AND HEREBY AFFIRMS THE
DECISION OF THE ASSISTANT ADMINISTRATOR THAT BUILDING CONSTRUCTION
WAGE RATES SHOULD BE APPLIED TO THEIR CONSTRUCTION. BOTH PETITIONS
ARE HEREBY DISMISSED.
BY ORDER OF THE BOARD,
Craig Bulger,
Executive Secretary [] [6]
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