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<![CDATA[
CCASE:
ALMEDA-SIMS SLUDGE DISPOSAL
DDATE:
19790430
TTEXT:
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[1] WAGE APPEALS BOARD
UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, D. C.
In the Matter of
ALMEDA-SIMS SLUDGE DISPOSAL WAB Case No. 78-13
Plant, Harris County, TX [Dated: April 30, 1979]
NOTICE OF CLARIFICATION
The Wage Appeals Board has received a Motion for
Reconsideration or, in the alternative, for clarification from the
Houston-Gulf Coast Building and Construction Trades Council
and the Building and Construction Trades Department, AFL-CIO,
(hereinafter Intervenors). The City of Houston has filed a
Memorandum in Opposition to the Intervenor's Motion.
The Intervenors claim that the Board's direction that
wage rates incorporated in the contract for Almeda-Sims Sludge
Disposal Plant project need not be changed to reflect the Assistant
Administrator's characterization of the project as building
construction, despite the fact that the Board found that the
Environmental Protection Agency (EPA) erred in substituting
its judgment for that of the Assistant Administrator, is contrary
to the principles of the Davis-Bacon Act. Also, Intervenors [1]
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[2] state that the Board lacks the authority to direct that wage rates
incorporated in federally-funded contracts be altered in any way.
In its Motion Intervenors assume that delays occurring between the
time when the wage rates were first questioned and the ultimate
decision by the Board were relied on by the Board as a basis for
not changing the wage rates. Intervenor argues that the various
delays were caused by the Department of Labor and particularly by
EPA and that this should not work to the detriment of the employees
working on the project.
The Board does not agree with the Intervenors' assumption.
Even if the Board had the authority to change the rates in the
contract after award it was testimony at the hearing which tended
to create questions as to which of the two schedules, building or
heavy, was properly applicable to the Almeda-Sims Sludge Disposal
plant, not the lapse of time, that moved the Board to state that
it would not direct that the wage rates be changed.
In its statement that the construction contract had been
awarded for some time and therefore the Board would not direct
that the wage rates be changed, the significant language is that
the contract has been [*] awarded [*] [Emphasis in original]. The
Board agrees with the Intervenors' contention that the Board cannot
direct that the wage rates included in a contract be changed after
contract award. [2]
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[3] The Board has relied on this proposition in
two recent Wage Appeals Board decisions: Mobile Bay Bridge (WAB
77-22, October 21, 1977) where the Board ordered the Wage and Hour
Division to provide the petitioner with a corrected wage decision
for possible use in renegotiation of the contract, but where the
Board expressly stated that it was without authority to take any
action with respect to the contract in question, and that it could
not order that a corrected wage determination be substituted for
the one already in the contract. (Notice of Clarification, March
6, 1978), and Installation of Conveyor System, WAB 78-24 (April 6,
1979). The Board does not find the present decision to be
inconsistent with cases cited above.
In view of these considerations, the Intervenors' Motion
for Reconsideration [is] hereby dismissed.
BY ORDER OF THE BOARD
Craig Bulger, Executive Secretary
Wage Appeals Board [3]
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