CCASE:
SOULE GLASS AND GLAZING
DDATE:
19790208
TTEXT:
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[1] WAGE APPEALS BOARD
UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, D. C.
In the Matter of
SOULE GLASS AND GLAZING CO. WAB Case No. 78-18
Portland, MA Dated: February 8, 1979
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 Soule Glass and Glazing Company to review the decision of the
Acting Assistant Administrator, Wage and Hour Division, denying a
request for approval of an additional classification and wage rate
for glazier's helpers to be used on Petitioner's Federal projects
in the vicinity of Portland, Maine.
Prior to March 31, 1976, the Wage and Hour Division
permitted the employment of glazier's helpers by Petitioner on
Federal projects on the basis of a collective bargaining agreement
between Petitioner and Local No. 1516 of the International
Brotherhood of Painters and Allied Trades which contained a
provision for establishing a glazier's helper classification. The
aforementioned collective bargaining agreement expired on March 31,
1976. The union struck Petitioner and a new agreement was not
negotiated. Due to the fact that no settlement was reached and
that no skilled glaziers were available Petitioner states it hired
unskilled [1]
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[2] employees to replace its previous workforce and trained these
workers with its office personnel.
When Petitioner wished to utilize these employees on a HUD
project it requested the agency to obtain an additional
classification and wage rate for glazier's helpers for its trainees
but HUD rejected its request. Petitioner wrote to the Acting
Assistant Administrator in December 1977 and requested approval for
the rate but this was denied by the Acting Assistant Administrator
in her letter of April 24, 1978. Petitioner has now appealed the
Acting Assistant Administrator's decision to the Wage Appeals
Board.
It is the position of the Petitioner that it is unfair for
Wage and Hour to require it to pay the employees in question the
journeyman wage rate since the employees hired by the company
because of an emergency situation were under the instruction of
management personnel and did not at the time have the ability,
knowledge or skill of a journeyman glazier. It is argued that the
glazier's helpers which were approved by a representative of the
Wage and Hour Division during the time the negotiated agreement was
in effect were actually only informal trainees and not to approve
the helper classification after the expiration of the agreement
amounts to discrimination in favor of unionized employees.
It is the position of the Wage and Hour Division that the
employees of Petitioner were informal trainees who were not in an [2]
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[3] approved training program. The Department' s regulations are
relied on to establish that trainees and apprentices can be
utilized on Federal projects at less than the predetermined wage
rate for the work actually performed only if they are individually
registered in an approved apprenticeship program or in an approved
trainee program. Wage and Hour also cites Wage Appeals Board
decisions which lend support to their position.
The Board considered this appeal on the basis of the
Petition for Review filed by the Petitioner, and the Statement for
the Assistant Administrator and Wage and Hour's record of the case
file by the Solicitor of Labor.
It seems to the Board that it is a misnomer to label the
employees here under consideration "helpers." Traditionally,
helpers do not learn the trade with a view of ultimately becoming
journeymen. There is merit to the view of Wage and Hour, and the
Petitioner itself admits, that the employees were trainees and it
does not appear from the record that they are registered in a
training program that is approved or registered as required by the
applicable regulations, 29 CFR [secs] 5.2(c) and 5.5(a)(4). Duly
registered apprentices or trainees are the only employees covered
by the labor standards provisions of the Davis-Bacon and related
Acts and regulations applicable thereto who may be paid less than
the predetermined wage rate for the work they perform. In a recent
case, (CRC Development Corp. WAB [3]
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[4] Case Nos. 77-01 and 77-13, Order Dismissing, January 23, 1978,
at p.2), concerning employment of apprentices this Board stated:
Payment of the apprentice wages are permitted under
Davis-Bacon Act cases only to the very limited extent
that is spelled out in the approved apprenticeship
agreement. Other than the apprentice rate, there is
no provision for payment of a wage rate other than
the journeyman's rate in the Davis-Bacon Act and
related acts.
The Board considers these statements equally applicable to
trainees.
The question of validity of the glazier helper's
classification that Petitioner was permitted to use by Wage and
Hour under the earlier negotiated agreement is not before this
Board and the Board is expressing no opinion with regard to it.
Nevertheless, it is clear that the employees hired by Petitioner to
perform the glazing duties and for which an additional
classification and wage rate for glazier's helper was requested
were not helpers because they were performing journeyman duties and
learning the trade, as stated by Petitioner. Helpers do not
perform these duties or learn the trade. Nor were these employees
bona fide trainees recognized under the applicable regulations
because they were not in a registered program.
In view of these considerations, the decision of the Acting
Assistant Administrator, Wage and Hour Division, is affirmed and
the Petition for Review is hereby dismissed.
BY ORDER OF THE BOARD
Craig Bulger,
Executive Secretary
Wage Appeals Board
