CCASE:
HOLLOWAY SAND AND GRAVEL
DDATE:
19800116
TTEXT:
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[1] WAGE APPEALS BOARD
UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, D. C.
In the Matter of
HOLLOWAY SAND AND GRAVEL WAB Case No. 79-13
TRUCKING, INC. Dated: January 16, 1980
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
Holloway Sand and Gravel Trucking, Inc., to review the decision of
the Assistant Administrator dated February 9, 1979. Petitioner
claims that the Assistant Administrator's ruling that the wage
rates contained in certain highway construction wage determinations
were prevailing for truck drivers working on the projects was
erroneous, and that lower rates negotiated in the so-called
"Aggregate Agreement" should be applied to drivers hauling
material to the projects in question.
Petitioner was a subcontractor on five contracts for the
Michigan State Highway Commission totalling over $20,000,000. The
contracts for the projects were awarded between July, 1975 and
August, 1976, and were all subject to the Davis-Bacon provisions of
the Federal-Aid Highway Act of 1956, as amended, and Department of
Labor Regulations, [1]
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[2] 29 CFR Part 5. The wage determinations applicable to the
contracts contained wage rates for various classifications of
truck drivers ranging from $8.10 to $9.52 per hour. Prior to
August 21, 1976, all Petitioner's truck drivers were paid $9.52
per hour in accordance with the collective bargaining agreement
between the Michigan Road Builders Association and the Michigan
Teamsters Conference (hereinafter Road Builders Agreement). An
investigation of Petitioner's performance by the Wage and Hour
Division during the fall of 1976 disclosed that beginning with the
week ending August 21, 1976, Petitioner began to pay its truck drivers
$7.33 per hour, a rate that corresponds to a different collective
bargaining agreement entitled "Agreement between the For Hire Aggregates
and Kindred Commodity Carriers of Michigan and The Michigan Conference
of Teamsters and Various Teamsters Local Unions" (hereinafter Aggregate
Agreement).
During negotiations between Petitioner and the Wage and Hour
Division it appeared that there had been a long standing dis[]pute
concerning which collective bargaining agreement covered movements
onto and away from a highway job. On November 11, 1976, this
dispute was resolved by an arbitration decision which determined
that driver employees moving material onto a construction site were
covered by the Aggregate Agreement and not the Road Builders [2]
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[3] Agreement. Petitioner alleged, based on this decision, that the
rates contained in the wage determination for truck drivers
improperly reflected only the Road Builders Agreement rates and
asked that the Aggregate Agreement rates be added to the wage
determination as well. Wage and Hour claimed the Road Builders
Agreement's wage rates had been found to be prevailing on the date
the decision was issued and refused to add the Aggregate
Agreement's rates. On February 27, 1978, Wage and Hour determined
that $8,737.24 in back wages was due employees on the five
contracts.
The dispute was referred to the Assistant Administrator and by
letter dated February 9, 1979, the Assistant Administrator advised
Petitioner, among other things, that the wage rates contained in
the applicable wage determinations were based on negotiated rates
which were found to be prevailing for truck drivers performing work
on projects of a character similar, and that the classifications of
truck drivers employed by Petitioner under the contracts were
classifications listed in the wage determinations. Therefore, no
conformance of additional or different wage rates would be
approved.
Petitioner appealed the Assistant Administrator's decision to
the Wage Appeals Board on June 1, 1979. The Board considered this
matter in executive session on the basis of the petition with
attachments filed by Petitioner [3]
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[4] and a Statement on behalf of the Assistant Administrator, Wage
and Hour Division, and the record of the appeal before Wage and Hour
filed by the Solicitor of Labor. It was determined that a hearing
by the Board would not be necessary to decide the appeal since the
factual situation was undisputed.
It is Petitioner's position that the Assistant Administrator
is erroneous in upholding the Road Builders Agreement rates for
moving materials onto the construction site because it claims that
practice and custom has established that drivers of trucks moving
materials onto the site are covered by the Aggregate Agreement and
not the Road Builders Agreement. Petitioner therefore claims it
would be unjust for the Employment Standards Administration to be
able to impose those rates which were not prevailing for a
particular type of work.
The Board notes that in an April 7, 1977 letter from
Petitioner's attorney, Mr. Robert A. Sullivan, to the Wage and Hour
Pontiac, Michigan, office, concerning the alleged underpayments,
Mr. Sullivan discusses the two negotiated agreements here in
question, and on page 3 states: "There was considerable dispute for
many years concerning which contract covered which particular
movement when it involved movements onto and away from a highway
job." This dispute was not finally resolved until the [4]
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[5] arbitration decision dated November 11, 1976, well after the
contracts in question were awarded with the rates from the Road
Builders Agreement and work was commenced paying the truck drivers
in accordance with the Road Builders Agreement.
It does not appear that Petitioner raised a question
concerning these wage rates prior to award of his contracts or
claimed that the wage rates in the Road Builders Agreement were not
prevailing. If Petitioner disagreed with Wage and Hour's
determination of the rates as provided by the Michigan State
Highway Commission, Petitioner should have requested Wage and Hour
to resolve the matter at that time. If not resolved further appeal
could have been made to the Wage Appeals Board. In Southeastern
Capital Corp. WAB 78-12 (January 16, 1979) the Board stated;
These channels of appeal are provided to
eliminate questions and disagreements arising
during construction of the project and would
seem to the Board to be an appropriate effort
on the part of the contracting agencies and the
Department of Labor to assist the parties
interested in Federal or Federally assisted
construction. However, they can only be of
assistance to the parties if they avail
themselves of them.
In Espana Gardens, WAB 76-15, (May 4, 1977) the Board found:
It is apparent here that the petitioner is
still trying to raise the question of what
was the prevailing rate for the craft in question
before the project was started. Petitioner had
at the time the question first arose in 1972 [5]
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[6] the options of appearing before the Wage
Appeals Board to protest the prevailing
wage rates in contention prior to the start
of construction..., or he could have chosen
not to proceed with the construction of the
project until such time as the question of
the wages was finally settled. Following
neither of these options he chose to proceed
with construction. He cannot be allowed to
question the wage rates in the wage
determination provided to him.
The Board agrees with the conclusion of the Assistant
Administrator that there is no basis for issuance of conformable
rates pursuant to 29 CFR [sec] 5.5(a)(ii), as requested by
Petitioner Wage rates for the truck drivers were already contained
in the applicable wage determinations. The Assistant Administrator
correctly noted that a conformance by its own terms only applies
when there is no classification in the wage determination which
applies to the work being performed. As in Espana Gardens, supra,
Petitioner by this appeal is trying to change the determination of
prevailing wage rates for truck drivers after the contracts have
been awarded. The Board has concluded in similar decisions
that such appeals are untimely and cannot be permitted.
In view of these considerations, the decision of the Assistant
Administrator, Wage and Hour Division, is hereby affirmed and the
Petition for Review is dismissed.
BY ORDER OF THE BOARD
Craig Bulger,
Executive Secretary
Wage Appeals Board
