CCASE:
EDWIN VINECKID/B/A/ ALPINE ROOFING
DDATE:
19790223
TTEXT:
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[1] WAGE APPEALS BOARD
UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, D. C.
In the Matter of
Edwin Vinecki d/b/a WAB Case No. 78-22
ALPINE ROOFING CO.
Wurtsmith Air Force Base, MI Dated: February 23, 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 Mr. Edwin Vinecki doing business as Alpine Roofing Co., of
Gaylord, Michigan, to review a decision of the Director of
Government Contract Regulations, Wage and Hour Division, that
employees engaged in the removal of a built-up roof and classified
as laborers by Petitioner should have been classified as roofers.
The Air Force, the contracting agency, determined that on this
basis 17 employees were misclassified and were due a total of
$8,295.90 in back wages which is currently being withheld by the
Air Force.
The Wage and Hour Division in a final decision under
Section 5.12 of the Regulations (29 CFR) determined that it was
the practice in the vicinity of Wurtsmith Air Force Base for
roofers to perform the duties involved in removal and replacement
of a built-up roof and affirmed the findings of the Air Force.
Petitioner has requested a review of Wage and Hour's decision by
the Wage Appeals Board. [1]
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[2] It is the position of the Petitioner that representatives of
the Air Force did not know what the area practice was with
reference to removing roofing at Wurtsmith Air Force Base, that the
Air Force had not stopped the project to resolve the dispute as the
contract indicated they would and that Petitioner considers he is
being discriminated against because laborers were permitted to tear
off roofs for the carpenter's crew on the same job site. Finally,
Petitioner claims that he has personal contracts with his employees
wherein they agree to perform the jobs assigned to them and which
the Petitioner considers define his obligations to his employees.
The Wage and Hour Division relies on statements of this
Board in the decision for Fry Brothers Corp., et al, WAB Case No.
76-06, June 14, 1977, and related Wage Appeals Board cases which
held that the prevailing practice in the area with respect to the
employment of the classification which performs the disputed work
determines which rate of pay is to be the minimum payable. They
further argue that since the applicable wage determination for the
contract reflects negotiated wage rates as the prevailing wage rate
for roofers and laborers in the area, the Labor Department should
endeavor to give effect to the job content accorded the various
classifications in the respective negotiated agreements. They also
rely on statements by representatives of the roofers and laborers
local unions defining the [2]
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[3] area practice in the locality. These statements indicated an
agreement that in the negotiated sector roofers perform all tasks
in connection with tearing down roofs in a situation where the roof
in question is being replaced.
The Wage Appeals Board considered this petition on the basis
of the Petition for Review filed by the Petitioner, and the
Statement of the Case and the record filed by the Solicitor of
Labor on behalf of the Wage and Hour Division.
It seems to the Board that this appeal must be decided on
the basis of the established area practice in the vicinity of
Wurtsmith Air Force Base. A review of a record of the case filed
by the Wage and Hour Division includes an extensive area practice
survey conducted by the Air Force in their investigation in
connection with this dispute. Among other information gathered in
this survey the Air Force found that on nine contracts for
replacing and repairing roofing at Wurtsmith Air Force Base between
April 1973 and July 1976, roofers were utilized to remove the
roofing on eight of the contracts. In light of this information
the Board considers that an area practice of employing roofers to
remove old roofing when new roofing is being installed had been
satisfactorily established. This area practice governs the rate of
pay applicable to Petitioner's employees engaged in removal of old
roofing on the project in question. [3]
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[4] In view of these considerations, the decision of the
Director of Government Contract Regulation is affirmed and the
Petition for Review is hereby dismissed.
BY ORDER OF THE BOARD
Craig Bulger,
Executive Secretary
Wage Appeals Board
