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<![CDATA[
CCASE:
IRBY CONSTRUCTION
DDATE:
19790316
TTEXT:
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[1] WAGE APPEALS BOARD
UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, D.C.
In the Matter of
IRBY CONSTRUCTION CO. WAB Case No. 78-09
CENTRAL ARIZONA PROJECT March 16, 1979
Decision by: Alfred L. Ganna, Chairman, Thomas M. Phelan,
Member, William T. Evans, Member
DECISION OF THE WAGE APPEALS BOARD
This case is before the Wage Appeals Board on the petition of
Irby Construction Company of Jackson, Mississippi, to review a
decision of the Assistant Administrator, Wage and Hour Division,
which held that the employees engaged in the assembly on the ground
of steel structures to carry electrical transmission lines for a
Bureau of Reclamation project in central Arizona should be paid the
appropriate groundman rate from the Line Construction wage
schedule, instead of the Group 4 laborers wage rate which
petitioner considers should apply to the work. Both wage rates in
contention were contained in the wage determination applicable to
the project and were based on rates negotiated in the respective
collective bargaining agreements. [1]
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[2] It was the position of the Irby Construction Company in
their discussions with Wage and Hour that the duties performed by
the employees in question, i.e.: the assembly of steel towers on
the ground by the use of hand operated torque wrenches falls within
Group 4 of the laborers wage rate schedule which lists, among other
classifications, "similar mechanical tools not separately
classified," and that the hand operated torque wrenches are less
complicated than other tools specified in laborer Group 4 which
includes certain pneumatic and electric tools. Petitioner further
asserted that the employees performing this task require no skill
beyond the ability of joining steel members by tightening nuts and
bolts, that the specified duties listed in the line construction
agreement applicable to the project which the Bureau of Reclamation
claimed applied to the proposed work did not cover the duties of
the employees assembling the steel members with hand held torque
wrenches. Finally, Petitioner cites that in 58 years of experience
constructing electrical transmission lines in various parts of the
United States, it has always used laborers for the aforementioned
on-ground assembly of steel towers.
In March 1978, the Assistant Administrator of the Wage and
Hour Division ruled that the assembly in question should [2]
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[3] be performed by groundmen under the line construction classi-
fication and not by laborers. As a result, the Bureau of Reclama-
tion has withheld a sum of money representing additional wages for
the misclassified employees. It is from this decision that the
petition for review to the Wage Appeals Board was taken.
In its appeal to this Board, Petitioner relies on the
arguments listed above and also asserts that the classification of
the workers in question for Davis-Bacon administration purposes
should not be determined by the collective bargaining agreements
applicable to steel tower construction in the locality of the
project. Petitioner attempts to distinguish the Board's decision
in Fry Brothers Corporation, WAB Case No. 76-06, June 14, 1977, by
claiming that in Fry there was evidence of considerable overlapping
of duties between the classifications in question, but in this case
the employees involved performed only those duties described in the
wage decision for laborers Group 4, and did not perform any of the
tasks that came within the purview of groundmen or other line
construction classifications. Petitioner, relying on a Comptroller
General decision, Comp. G. Dec. B-174602, states that the fact that [3]
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[4] some employers in the area chose to classify workers
performing tasks that are clearly laborers' jobs at a higher job
classification should not work to Petitioner's detriment.
Petitioner has also filed a response to a statement on behalf
of the International Brotherhood of Electrical Workers (IBEW) in
opposition to Petitioner's appeal to this Board. This response
urges the Board to strike the statement by the IBEW because it was
untimely, inappropriate to this appeal, and inaccurate.
The position of the Solicitor of Labor on behalf of the
Assistant Administrator, Wage and Hour Division, is that in a
situation where the Secretary of Labor has determined that the
prevailing wage rates are the negotiated rates, the prevailing
practice concerning the work performed by workers in the relevant
classifications is the practice utilized on projects being built by
contractors who are signatory to the collective bargaining
agreement. The Solicitor cites the Board's decision in Fry
Brothers Corporation, supra, in support of its position. The Wage
and Hour Division quotes from the Outside Agreement of Local 769 to
demonstrate that the assembly of transmission [4]
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[5] line towers is specifically claimed in the Scope of Agreement
and the working conditions.
On the basis of these authorities, and statements obtained
from representatives of the electricians' and ironworkers' local
unions whose agreements were reflected in the applicable wage
determination for this project, and a statement from the
Commissioner of the Bureau of Reclamation in March 1977 that the
Bureau's position was based on a review of construction activities
performed during the past 15 years on steel tower transmission
lines constructed in the area under Bureau of Reclamation projects,
Wage and Hour determined that the work in question should be
performed by groundmen under the line construction agreement. Wage
and Hour also points out that Petitioner has not submitted any
data regarding area practice in Arizona where the project in
question is located.
As aforesaid, the International Brotherhood of Electrical
Workers filed a statement in opposition to Petitioner's Petition
for Review and Appeal to this Board. The IBEW has taken a position
in support of the Bureau of Reclamation and the Wage and Hour
Division. [5]
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[6] The Board considered this appeal in executive session on
the basis of the Petition for Review and Response to IBEW's
Statement filed by Petitioner and the Statement for the Assistant
Administrator and the record of the case filed by the Solicitor of
Labor for the Wage and Hour Division.
The Davis-Bacon Act states, in part:
That the advertised specifications for every
contract in excess of $2,000 ... shall contain a
provision stating the minimum wages to be paid
various classes of laborers and mechanics which
shall be based upon the wages that will be
determined by the Secretary of Labor to be
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 subdivision
of the State in which the work is to be
performed .... [*] [*](Emphasis supplied)[*]
The underlined language requires that the employment practices
in the vicinity of the proposed project be considered in
determining the appropriate classification to perform the
on-ground assembly of the transmission towers. In this
connection the statement by the Bureau of Reclamation that
the work in question is generally performed by groundmen is
of considerable significance. A May 2, 1978 statement by
the Assistant Chapter Manager of the Southwestern Line
Construction Chapter, National Electrical Contractors [6]
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[7] Association, Inc., to the National Office of the Organization
categorically states that transmission towers have been built by
groundmen in Arizona for decades. In addition it should be noted
that the wage rates for laborers and groundmen in the applicable
wage determination were negotiated in collective bargaining
agreements. Petitioner has not presented to either Wage and Hour
or this Board any wage information from the locality which supports
its position that laborers usually assemble the towers. The fact
that the employee can be fitted into a catch-all phrase in the
laborer's agreement does not turn the work in question into a
laborer's work. The work he is performing must be considered in
classifying the employee.
In arriving at this decision, the Board has not been required
to consider arguments presented in the IBEW's statement to the
Board concerning other projects Petitioner worked on, but the Board
encourages interested parties to participate in these appeals and,
therefore, would not accede to Petitioner's request that the Board
strike from the record the statement on behalf of IBEW in
opposition to Irby's Petition for Review. [7]
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[8] Considering the foregoing, the Board confirms the decision
of the Assistant Administrator and hereby dismisses the petition
for review.
BY ORDER OF THE BOARD
Craig Bulger,
Executive Secretary
Wage Appeals Board [8]
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