G.A. & F.C. WAGMAN, INC., WAB No. 82-02 (WAB July 30, 1982)
CCASE:
G.A. & F.C. WAGMAN
DDATE:
19820730
TTEXT:
~1
[1] WAGE APPEALS BOARD
UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, D. C.
In the Matter of
G.A. & F.C. WAGMAN, INC. WAB Case No. 82-02
Baltimore, Maryland Dated: July 30, 1982
APPEARANCES: Patrick M. Pilachowski, Esquire for G.A. & F.C.
Wagman, Inc.
Terry R. Yellig, Esquire for Building and
Construction Trades Department, AFL-CIO
Ellen Segal, Esquire, Douglas J. Davidson, Esquire
Gail Coleman, Esquire (On Brief) for the Wage and
Hour Division, U.S. Department of Labor
BEFORE: Alvin Bramow, Acting Chairman, Stuart Rothman,
Member, Thomas X. Dunn, Member
DECISION OF THE WAGE APPEALS BOARD
This case in before the Wage Appeals Board on the petition of
G.A. & F.C. Wagman, Inc., (hereinafter Wagman) which seeks relief
from the decision of the Assistant Administrator, Wage and Hour
Division, dated October 27, 1981 concerning the wage rate to be
paid to employees who apply a protective coating to bridge parapet
walls and highway dividers called Jersey barriers which are part of
a construction contract awarded by the Maryland State Highway
Administration to Wagman to build bridge structures and related
ramps over the middle [1]
~2
[2] branch of the Patapsco River in Baltimore, Maryland. A hearing
on this matter was held on July 15, 1982 pursuant to the Board's
Notice of Hearing and all interested parties were represented at
the hearing. /FN1/
The overall project under consideration is the construction of
major bridges and ramps over the middle branch of the Patapsco
River to carry Interstate Route I-95 through Baltimore City. The
construction contract was valued at approximately $50,000,000.
The Patapsco River is considered to be a navigable body of water
at the location of the bridge structures. Although portions of
the bridges and ramps are over land, it was apparent at the
hearing that portions of the bridges were built in the river since
it was admitted that coffer dams were employed in that part of the
construction. [2]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
/FN1/ At the hearing the Board considered a letter addressed to it
from Petitioner's attorney which questioned the propriety of Acting
Board Chairman Bramow and Board Member Dunn hearing and deciding
this appeal. Acting Chairman Bramow offered assurance that no
consideration of any matters related to this appeal had been made
in the Solicitor's Office during the time when the Acting Chairman
was associated with that office. This was confirmed by the
attorney representing the Wage and Hour Division at the hearing.
Board Member Dunn offered an explanation that he had retired from
the law firm of Sherman, Dunn, Cohen & Leifer on January 1, 1980
and no longer has any connection with the law firm despite the fact
that his name appeared on the firm's stationery. He advised that
the stationery would be reprinted to show that he was retired.
Petitioner's attorney accepted the explan[]ations of both Acting
Chairman Bramow and Board Member Dunn. [2]
~3
[3] The wage decision in question, 76-MD-9, was issued by the
Office of Construction Wage Determinations, Employment Standards
Administration, on February 5, 1976. This decision contained
schedules of wage rates for construction over land and separate
schedules for construction over water. None of the schedules
contained a wage rate for the application of a protective epoxy
coating. Wagman used laborers to apply the epoxy coating to the
parapet walls and Jersey barriers and compensated its employees
engaged in this work at the predetermined hourly laborer's rate
of $7.975 from the schedule for construction over water.
The affected employees complained through their local union
of the United Steelworkers of America, which protested Wagman's
payment practices to the Federal and the State Highway
Administrations and ultimately to the Wage and Hour Division. Wage
and Hour undertook an investigation of area practice regarding
epoxy application. On the basis of this investigation the
Assistant Administrator determined that since union wage rates
prevailed on heavy construction in Baltimore, union practices would
also prevail. The survey of the organized sector of heavy
construction contractors in Baltimore during the time period in
question indicated that painters were most often used for epoxy
application. Therefore the Assistant Administrator ruled that
Wagman's employees should be compensated at the painters'
prevailing hourly wage rate of $10.61. [3]
~4
[4] It is the position of Wagman in its petition to the Board
and during the oral argument that the project in question is
primarily a highway construction project and that the most
appropriate projects to be considered in conducting the Wage
and Hour area practice survey should be other highway projects
in Baltimore. In order to augment Wage and Hour's survey,
Petitioner obtained an affidavit from the Chief of Administrative
Services, Bureau of Construction of the Interstate Division for
Baltimore City to establish that since the late 1960's over 34
contracts had been awarded in Baltimore which were characterized
as major highway construction and that as of the date of the
Wage and Hour wage determination laborers performed epoxy
application 18 times and painters applied it 16 times. Petitioner
did not include data as to the number of employees engaged in epoxy
application on the various highway projects.
Petitioner also argues that Wage and Hour, by limiting its
consideration of projects for the area practice survey to only
heavy construction performed in the organized sector, resulted
in considering only three projects in the city. These projects
were interiors of concrete tanks of a paint manufacturer,
interiors of concrete treatment tanks at an anti-pollution
facility and interiors of metal tanks, machinery and concrete
footings at a sewage treatment plant. It is Petitioner's position
that none of these projects is as similar to the Patapsco River
bridge project as are the numerous elevated highway [4]
~5
[5] projects which Petitioner suggests Wage and Hour should have
considered in its survey. In presenting this argument Petitioner
placed reliance on this Board's decision in Highway Bridge over
Mobile Bay, WAB Case No. 77-2, (October 21, 1977). Petitioner
also cited Commonwealth of Virginia v. Marshall, 599 F.2d 588,
(4th Cir. 1979) at the hearing to support its arguments.
The Wage and Hour Division argues that it followed appropriate
practice in conducting the area practice survey since major bridges
over navigable streams had long been considered by the Wage and
Hour Division to be heavy construction and the wage rates
originally issued for the project reflected heavy construction wage
rates for all categories of laborers and mechanics to be employed
on construction over water. Wage and Hour also points out that the
statutory standard in the Davis-Bacon Act requires that wage rates
be determined from projects of a character similar, which in this
case would be other heavy projects. Although similar elements of
construction, i.e.: epoxy application, may occur in highway
construction, Wage and Hour argues that it is contrary to the
statutory standard of "projects of a character similar to the
contract work" to consider other types of projects in determining
area practice. Wage and Hour also relies on Commonwealth of
Virginia v. Marshall, supra, to support its position.
Finally Wage and Hour asserts that since the wage rates
issued for the project originally represented negotiated wages [5]
~6
[6] from the organized sect[or], the payment practices of open-shop
contractors are irrelevant and need not be considered. Wage and
Hour cites several of this Board's decision[s] to support their
contention, particularly Fry Bros. Corp. WAB Case No. 76-06 (June
14, 1977).
It was apparent to the Board at the hearing that Petitioner
is attempting to demonstrate that bridge structures which the
Assistant Administrator has characterized as heavy in this
contract are identical or very similar to structures which are
frequently built on highway projects. It is understandable to
the Board that the case was presented by Petitioner in narrow
terms. Petitioner's primary contention when narrowly viewed
is attractive. If one compares the engineering and construction
requirements of an elevated highway with a highway bridge over a
river with commercial navigation, one sees substantial
similarities. Putting aside the structural, engineering and
construction differences for bridge footings in a riverbed and such
elevated highway footings on land, views of the road surface, the
parapets and Jersey barriers on both types of projects look much
alike. Taking this premise, the Petitioner says the Assistant
Administrator when seeking the appropriate practice as to which
craft applies epoxy coating to parapets on bridges over navigable
water should have taken into account all those adjacent and
relevant elevated highways with parapet [6]
~7
[7] walls, notwithstanding the fact that elevated highways
are bid and awarded as highway projects at predetermined
highway rates.
This Board has an obligation to consider not only the narrow
view and interest of a particular petitioner but also the larger
elements of the public interest and the industry in the distinction
recognized in Baltimore City between highway construction at
highway rates and those parts of a highway system, such as bridges
over commercially navigable water, which are built (according to
local practices) at heavy construction rates. If the Petitioner
had an interest in attacking the Department of Labor's
determination by claiming that this project, FAP I-95-4(67)34,
being a bridge over water, should not have been constructed at
prevailing heavy construction rates as a heavy construction
project, the Petitioner should have raised that matter prior to
bid award. Such an attack cannot be made at the present time,
but can only be done in an appropriate and timely proceeding
which permits the Wage and Hour Division to take into account
the larger elements of comparing highway projects performed
at highway rates and those segments of a highway project which
under local practice, are to be performed at heavy construction
rates. If that had been the case and assuming, for purposes of
discussion, Petitioner prevailed, then all bidders would have
bid equally on the project at highway rates. And if that
had been the case, it is certainly a matter of conjecture [7]
~8
[8] whether the Petitioner would then in fact have been the low bidder.
Nothing this Board can do now can reverse a situation in which
a contractor has bid against other contractors to secure a project
award on the basis that it is a project similar to other heavy
construction, but thereafter seeks to isolate work or tasks which
it wishes to identify as being the same as highway construction for
the purpose of determining the local area practice as to which
craft of laborers or mechanics should perform the work.
If the Petitioner were to prevail in its contention here that
the area practice with respect to highway construction at highway
rates should be applicable to bridges over water navigable to
commercial vessels, then it would also follow that bridges over
water in the future must be based on wage predeterminations that
take pertinent highway construction into account. But it would also
follow, and here is the difficulty with the Petitioner's position,
that in the future all highway construction in the pertinent area
would be based on wage predeterminations that take into account the
heavy construction rate with the resultant increase in highway
costs. Petitioner, under the facts of this case, cannot have it
both ways. Among other things, such a view would unsettle the
nature and structure of the construction industry in the pertinent
area. The Board is not saying that in [8]
~9
[9] those localities where there are separate highway, heavy, and
building construction rates, or combinations thereof, difficult
problems do not arise concerning the applicable predetermination.
It is not saying that there are not circumstances where projects
that have carried a highway rate may be included in surveys to
determine the appropriate wage determination prior to contract
award. (See, for example, Virginia Segment C-7, Metro, WAB Case
No. 71-04, (December 7, 1971)). But there is an appropriate time
for such a challenge and this is not it. The Petitioner's meager
factual presentation concerning a local area practice to use a
highway construction practice on heavy construction work does not
warrant setting aside the determination of the Assistant Administrator
in this matter.
Petitioner directs the Board's attention to Commonwealth of
of Virginia v. Marshall, supra. The Board has carefully examined
this case and concludes that Petitioner's reliance on this case
is misplaced. In Commonwealth of Virginia the Secretary concluded
that construction of a median strip for a proposed rapid rail
system between two segments of I-66 was in fact a substantial
portion of the overall project and should be classified as heavy
construction. Such projects consistently and traditionally have
been classified as heavy construction, said the Court. Factually,
this was the case in the pertinent Virginia locality. There
was no question in Commonwealth of Virginia whether this or that
task or job duty within the whole rapid rail project was [9]
~10
[10] to be performed at the heavy rate or at the highway rate.
All work on the median was to be done at the heavy construction
rates. Furthermore, the court did not conclude that the work in question
was entitled to a heavy construction wage rate because there was
a substantial amount of work involved distributed over a highway
construction project. The Court concluded that the Secretary had
issued a separate wage schedule because there was a substantial
amount of work in a category of its own different from the highway
classification and category. In the present case the epoxy work is
only a very minor or incidental part of the bridge portion of the
project.
The decision of the 4th Circuit is akin to the determination
made by the Assistant Administrator and by the State agency in
classifying the subject bridge over a navigable stream used by
commercial vessels as heavy construction, even though the
approaches were or could have been elevated highway over land
construction at highway rates. The application of the epoxy
coating, a process applied with rollers the same as paint, was
nothing more than an incidental and integrated part of the heavy
construction project, the bridge over commercially navigable water.
Therefore, we conclude that this case falls sq[u]arely within
the prohibition developed over many years in the administration of
the Davis-Bacon Act and the Department's Regulations, 29 CFR Parts
1 and 5, that individual tasks or job duties are not to be isolated
from projects for the sole purpose [10]
~11
[11] of determining which craft shall perform the work. In this
case we see no justification to distinguish the pay from the practice,
here both should be determined from within the heavy construction segment
of the industry. The Assistant Administrator appropriately excluded the
highway projects that the Petitioner would now want the Board to
order the Administrator to include.
The Board concludes that Petitioner has not come near to
sustaining its burden that a local practice exists in the City of
Baltimore that laborers apply epoxy coatings on parapet walls and
Jersey barriers on new construction of highway bridges over
navigable water. This conclusion is reached even though there
may be a local practice that laborers apply epoxy coatings to
parapet walls on highways, including elevated highways, over land.
The Board does not find that the Highway Bridge over Mobile
Bay case, supra, requires the Board to come to a different
conclusion. In that case there had been bridges built in the same
locality within the appropriate time period which had not been
included in the wage rate survey. Here there had been no bridges
over navigable water which any of the parties could identify for
inclusion in the survey.
The fact that the U.S. Department of Labor and the local
governmental agencies found it proper both as a matter of
contracting policy and of local practice to differentiate [11]
~12
[12] between bridges over land (including elevated highways awarded
under the local highway schedule for wage rates) and bridges over
water (awarded under the heavy schedule for wage rates) is a matter
that cannot be challenged at this late time nor does the Petitioner
seek to do so. The Board does not have to and does not quite reach
the rationale of the Fry Bros. Corp. decision, supra, relied upon
by the Assistant Administrator, although the result reached herein
is much the same.
In view of these conclusions, the decision of the Assistant
Administrator, Wage and Hour Division, is affirmed and the petition
is hereby dismissed.
BY ORDER OF THE BOARD
Craig Bulger,
Executive Secretary
Wage Appeals Board
