CLEVENGER ROOFING & SHEET METAL CO., WAB No. 79-14 (WAB Aug. 20, 1980)
CCASE:
CLEVENGER ROOFING & SHEET METAL
DDATE:
19800820
TTEXT:
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[1] WAGE APPEALS BOARD
UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, D. C.
In the Matter of
CLEVENGER ROOFING AND WAB Case No. 79-14
SHEET METAL CO., Lima, Ohio Dated: August 20, 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 Clevenger Roofing and Sheet Metal Company of Lima, Ohio, to
review the decision of the Assistant Administrator denying a
request that the additional classification of roofer's helper/
trainee be added to wage decision No. OH 77-2069, applicable to
the project on which Petitioner had subcontracted to perform
roofing construction on Building 147 at the Lima Army Modification
Center. Petitioner based its request for the additional
classification on its agreement with Local Union No. 86 of the
United Slate, Tile and Composition Roofers, Damp and Waterproof
Workers' Association, AFL-CIO, which contained a provision for
employment and payment of roofer's helper/trainee at 60% of the
journeyman's rate.
Petitioner claims it is unfair to deny the additional
classification because it was established in a bona fide collective
bargaining agreement, that it was the prevailing practice in the
area to employ roofer's helpers, and because Petitioner's [1]
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[2] request for roofer's helper/trainee was approved by a
representative of the contracting agency, the Corps of Engineers,
and the project nearly completed before Petitioner was advised by
the Corps of Engineers that the Department of Labor had refused
to approve the request. The Department of Labor claimed there was
already a classification in the applicable wage decision which
performed the duties contemplated for the roofer's helper/trainee,
that is, the roofer. Following this decision Petitioner was
requested by the Corps of Engineers to compensate all employees
previously paid as roofer's helpers as roofers. This had the
effect of requiring Petitioner to pay these employees approximately
$20,000 in back wages.
Petitioner is also urging the Board to change its position
expressed in numerous Wage Appeals Board decisions which have
supported the Wage and Hour Division with regard to relatively
limited recognition of helper classifications. Petitioner asserts
that to do so would result in a $20,000 saving in labor costs to a
small business concern which has performed satisfactorily on its
contract, and would combat inflation.
It is the position of the Wage and Hour Division that the
classification of Apprentice and Roofing Trainee as defined in
Article IX, Section 14 of the collective bargaining agreement is in
reality an informal trainee who is not registered in any bona fide
training program. The regulations, Wage and Hour asserts, are
clear that apprentices and trainees can be utilized [2]
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[3] at less than the predetermined rate only if they are registered
in a recognized apprenticeship program or an approved trainee program.
Under these circumstances Wage and Hour considers the duties
performed by these roofer's helpers to be part of the roofer's
duties and since there is already a classification and rate for
roofers in the applicable wage decision there is no justification
for issuing a roofer's helper's rate whether the practice of
employing roofer's helpers in the area is a prevailing practice or
not.
Petitioner appealed the Assistant Administrator's decision to
the Wage Appeals Board on June 12, 1979. The Board notes that
Petitioner requested an oral argument before at least one member of
the Board as provided by Regulations, 29 CFR Part 7, but since
there was no dispute concerning the facts as evidenced by
Petitioner specifically adopting the statement of the case as
filed by the Assistant Administrator, the Board determined that
a hearing was not necessary. The full Board considered the appeal
in executive session on the basis of the petition and statement
filed by Petitioner, the statement for the Assistant Administrator,
Wage and Hour Division, filed on her behalf by the Solicitor of
Labor, and the record of the case before the Wage and Hour
Division.
The Board notes that Petitioner states it will not attempt to
distinguish its appeal from similar appeals considered by the Wage
and Hour Division, and at times before this Board, but urges that
it is time to change a policy concerning employment of
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helpers developed during the 1930's. The Board would call Petitioner's
attention to the fact that this Board has considered two similar
appeals in 1978: CRC Development Corp. & Don Harris Plumbing Co.,
WAB Case Nos. 77-01 and 77-13, Order Dismissing (January 23, 1978)
and Fort Richardson, WAB Case No. 78-02, (September 18, 1978), and
three similar appeals in 1979, that is: DeNarde Construction Co.,
WAB Case No. 78-03 (May 14, 1979), Soule Glass & Glazing Co., WAB
Case No. 78-18 (February 8, 1979, and Prime Roofing Inc., WAB Case
No. 78-20 (January 11, 1979). Therefore, although the policy
concerning recognition of the classification of roofer's
helper/trainee may have developed long ago, the Board's acceptance
of that policy is still a current position.
The Board finds that the description of the duties of the
Apprentice and Roofing Trainee in Article IX, Section 14, which
Petitioner's roofing contractors' association signed with Local
Union No. 86 does not sufficiently differentiate the helpers from
the classification of roofers to permit the Assistant Administrator
to issue the requested classification. The contract describes
these duties, in part, as follows:
Apprentice and Roofing Trainee Duties - The
Apprentice or a roofing trainee learns by doing. He
is getting paid wages by the contractor to take
instructions, and assisting the journeyman roofer,
while practicing his trade to be and getting practical
experience. The roofing trainee may advance to
apprentice when he qualifies by apprenticeship
standards (BAT) when openings are available.
Apprentice Roofing Trainee shall assist in roofing,
demolition, handling materials, learning difference
in materials is very important. Learning to use
equipment and tools of the roofing trade in all phases
of applying all types of roofs. *** [4]
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[5] The Department of Labor's regulations relating to employment
of apprentices and trainees at 29 CFR [secs] 5.2(c) and 5.5(a)(4)
are clear that these categories of workers may be employed only
under specific limited conditions. Since Regulation [sec]
5.5(a)(4) is also required to be included in the contract
provisions which Petitioner signed with the contracting agency,
Petitioner cannot now be permitted to claim that it was not aware
of the limitations on the use of apprentices or trainees. In
general these regulations state that apprentices and/or trainees
can be utilized at less than the predetermined rate for the work
actually performed only if they are individually registered in an
apprenticeship program registered with a recognized State
apprenticeship council or the Bureau of Apprenticeship and
Training, U.S. Department of Labor, or in an approved trainee
program as evidenced by a formal certification from the Bureau of
Apprenticeship and Training.
Although the Petitioner is a union contractor it appears that
none of the employees here in question were apprentices
individually registered in a bona fide apprenticeship program or
were in any formal approved trainee programs. It further appears
that there were no trainee programs in Ohio at this time.
In CRC Development Corp., supra, this Board noted with
reference to apprentice rates:
Payment of the apprentice rates are permitted
under the Davis-Bacon Act cases only to the very
limited extent that is spelled out in the approved [5]
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[6] apprenticeship agreements. 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 and related Acts. ***
This same statement would have applied to trainee's rates. See
Soule Glass & Glazing Co., supra.
With reference to the preliminary approval of the requested
classification by the representative of the Corps of Engineers, the
contracting agency, the Board notes that the regulations included
in any contract subject to the labor standards provisions of the
Davis-Bacon and related Acts require the contracting agency to
report the reclassification to the Secretary of Labor, 29 CFR
Section 5.5(a)(1)(ii). These regulations do not give the
contracting agency or its representative the authority to approve
additional classifications, and this Board has so held on many
occasions.
In Metropolitan Rehabilitation Corp., WAB Case No. 78-25
(August 2, 1979) the Board stated:
Petitioner's reliance upon the contracting officer's
advice as to the appropriate wage rate cannot operate
to relieve Petitioner of its responsibility to pay
the correct rate to laborers and mechanics employed
on its projects for two important reasons: First;
even if the Board assumes that the contracting
officer's advice was not conditioned on Department
of Labor approval, that advice was not binding
on the Department of Labor and does not estop the
Department of Labor from requiring the payment of
the proper wage rate. The Department of Labor has
the final authority in this regard under the statute
and Reorganization Plan No. 14, and no one outside
the Department operates with any apparent authority
such as would estop the Department of Labor from [6]
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[7] making the final determination. Second; the
estoppel argument would not be binding on the
laborers and mechanics themselves so as to cut off
any individual rights they may have under the
Davis-Bacon Act to receive the proper wage rate.
In this regard, also see Gananda Development Corp., WAB Case
Nos. 73-13 and 74-01 (May 14, 1979).
In view of these considerations, the decision of the Assistant
Administrator denying the issuance of an additional classification
for roofer's helper is affirmed and the Petition for Review is
hereby dismissed.
BY ORDER OF THE BOARD
Craig Bulger,
Executive Secretary
Wage Appeals Board
