PRIME ROOFING, INC., WAB No. 78-20 (WAB Jan. 11, 1979)
CCASE:
PRIME ROOFING
DDATE:
19790111
TTEXT:
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[1] WAGE APPEALS BOARD
UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, D. C.
In the Matter of
PRIME ROOFING, INC. WAB Case No. 78-20
Fallon, NV Dated: January 11, 1979
DECISION OF THE WAGE APPEALS BOARD
This case is before the Wage Appeals Board on the petition
of Prime Roofing, Inc., to review the decision of the Director of
the Division of Construction Wage Determinations denying
petitioner's request that an additional classification of "Extra
Man (Helper)" be added to the applicable wage determination for
petitioner's contract to reroof and make exterior repairs on
Capehart Housing units at Fallon, Nevada. The applicable wage
determination for the project contained no classification or wage
rates for roofer's helpers.
Petitioner requested the addition of a roofer's helper
classification to the wage determination upon receiving award of
the contract. The wage rate proposed by Petitioner was based on
the Working Agreement between the Union Roofing Contractors of
Northern and Central Nevada and Local 224 of the United Slate, Tile
and Composition Roofers, Damp and Waterproof Workers' Association
applicable to the period in question. The Working Agreement
included [1]
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[2] a provision recognizing the "helper" classification
at 50 percent of the journeyman's rate. A further provision of the
Working Agreement (Article V(A)(3)) states, in part:
A Helper is a party who has not qualified and cannot
qualify for training in the roofing trade under the
Apprenticeship Standards for the Roofing Industry,
Reno, Nevada. Helpers will not be used for applications
of material covered under the agreement if Apprentice[s]
or Journeymen are available.
Petitioner's request was denied by the Contracting Officer
on two occasions and Petitioner, through its attorney, requested
the Wage and Hour Division to review the Contracting Officer's
decisions. In June 1978, the Director of the Division of
Construction Wage Determinations concurred with the position of the
Contracting Officer in denying the requested additional
classification. The present appeal to the Wage Appeals Board was
taken from this final decision.
The Petitioner's position is that the use of roofer's helpers
in the area was a prevailing practice at the time of contract award
and that the work which the helpers had performed was not the type
of work which would ordinarily be performed by either journeymen or
apprentice roofers. Petitioner argues that the duties actually
performed by helpers on the project were exactly those defined in
the agreement for helpers, i.e.: loading roofs and tearing off and
cleaning up existing roofs prior to reroofing. It is also stated
that no application or installation of roofing materials was done
by helpers. For these reasons Petitioner argues that the roofer's [2]
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[3] helpers classification at 50 percent of the journeyman's
rate should be permitted.
The Wage and Hour Division argues that the definition of
helper in the Working Agreement contains no limitation on the
duties to be performed by helpers where roofers or apprentices are
unavailable. Since under this definition helpers may perform
roofer's duties, Wage and Hour did not find sufficient distinction
between the classifications and therefore felt that it was not
proper to issue a classification and rate for roofer's helpers
pursuant to 29 CFR [sec] 5.5(a)(ii). Wage and Hour cites this
Board's decision, In the Matter of Wage Rates for Roofers' Helpers,
Ft. Richardson, Alaska (WAB Case No. 78-02, Sept. 18, 1978) in
support of its position.
The Wage Appeals Board considered this case in executive
session on the basis of the Petition for Review and Response of
Petitioner to Statement for the Wage and Hour Division filed by
Petitioner, the Statement for the Wage and Hour Division filed by
the Solicitor of Labor and the record provided by the Wage and
Hour Division.
It seems to the Board that the propriety of the decision of
Wage and Hour must be considered from the same point of view from
which Wage and Hour considered the request for the additional
classification. The Wage and Hour Division requires contracting
officers to obtain additional classifications before the work is
performed for which these classes of laborers and mechanics are
needed. At [3]
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[4] that time, the only source to which Wage and
Hour could turn was the Working agreement. In this case the
Working Agreement was clear that helpers at 50% of the journeyman's
rate could be used for application of material if apprentices or
journeymen were not available. In advance of construction of the
project neither the Contracting Officer nor the Wage and Hour
Division could be assured that the requested helpers would not
install roofing material permitted by the agreement. The standard
of the work which would be performed by the helper must be applied
from the working agreement before the work was performed. It does
not avail the Petitioner to claim after the project is constructed
that the helpers only loaded the roof or removed existing roofing.
In view of these considerations, the Petition is dismissed
and the decision of the Wage and Hour Division is hereby affirmed.
BY ORDER OF THE BOARD
Craig Bulger,
Executive Secretary
Wage Appeals Board
