CCASE:
GREGGO & FERRARA, INC.
DDATE:
19830511
TTEXT:
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[1] WAGE APPEALS BOARD
UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, D. C.
In the Matter of
GREGGO & FERRARA, INC. WAB Case No. 82-06
Wage Rate for Rebar
Del. Proj 76-01-010 Dated: May 11, 1983
APPEARANCES: Ronald Rosenberg, Esquire, A. Richard Feldman,
Esquire for United Steelworkers of America
Roger S. Claus for Greggo & Ferrara, Inc.
Gerald F. Krizan, Esquire, Gail V. Coleman, Esquire
for the Wage and Hour Division, U.S. Department of
Labor
BEFORE: Alvin Bramow, Chairman, Thomas X. Dunn, Member
Stuart Rothman, Concurring
DECISION OF THE WAGE APPEALS BOARD
This case is before the Wage Appeals Board on the petition
of the United Steelworkers of America and its Local Union
No. 15253 (hereinafter Steelworkers). The Steelworkers, who are
the collective bargaining representatives of the employees of
Greggo & Ferrara, Inc., seek review of a decision of the
Assistant Administrator, Wage and Hour Division, dated March 5,
1982, as to the appropriate classification for tying reinforcing
iron bars (rebar) on construction project 76-01-010 [1]
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[2] in New Castle County, Delaware performed by Greggo & Ferrara, Inc.
The Assistant Administrator found no definitive area practice with
respect to tying rebar and took no exception to the classification
utilized and the wage rate paid by Greggo & Ferrara, Inc.
Greggo & Ferrara, Inc., was the prime contractor on the
aforementioned Delaware project 76-01-010, described by the
Delaware Department of Transportation as a contract to construct a
$1.3 million railroad bridge over U.S. 13 south of Wilmington. The
construction commenced in 1976, was completed in 1979, and was
subject to the Davis-Bacon provisions of the Federal-Aid Highway
Act (23 U.S.C. 113(a)).
The Wage and Hour Division issued Wage Determination No. DE
76-3212 in 41 Fed. Reg. 32,122, dated July 30, 1976, which was
included and made a part of the project bid specifications and the
contract. This wage determination which was issued as the
prevailing wage rates and classifications applicable to building
construction (excluding single family houses and garden type
apartments, up to and including 4 stories), heavy and highway
construction in the State of Delaware reflected collective
bargaining agreements negotiated by unions of the Building and
Construction Trades' Department, AFL-CIO. The Steelworkers'
collective bargaining agreements for public highway work adopts
those rates which are predetermined by either a State agency or the
U.S. Department of Labor. Thus, [2]
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[3] the wage rates and classifications contained in Wage Determination[]
No. DE 76-3212 are those recognized by the Steelworkers and their
contractors under their agreements in the State of Delaware. In
addition to many other classifications and wage rates, it included a
wage rate for the classification of reinforcing ironworkers.
On January 14, 1980, after an investigation of area practice in
Delaware, the Wage and Hour Division issued a ruling in response to
the Delaware Department of Transportation's request for
clarification of the rebar issue that tying reinforcing bars on
highway work, including project 76-01-010, in the State of Delaware
is work within the classification of ironworkers. The Delaware
Department of Transportation was further informed that any
additional information contrary to such findings would be given
consideration.
In response to Wage and Hour Division's statement that
additional evidence would be considered, the Delaware Contractors
Associations submitted evidence concerning the classification
practices of the major contractors who performed rebar work in
the State of Delaware. These contractors were James Julian, Inc.,
G.A. & F.C. Wagman, Inc., and Greggo & Ferrara, Inc., all signatory
to contracts with the Steelworkers. This submission showed that
these three contractors classified employees when tying reinforcing
iron bars as carpenters, and to a lesser degree as laborers. The
submission further indicated that [3]
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[4] James Julian, Inc., paid the ironworkers' rate for rebar work to its
employees even though it classified them as carpenters or laborers.
The Assistant Administrator reconsidered her original decision
of January 14, 1980, and on March 26, 1981, issued a ruling that
the Wage and Hour Division could not find a clear practice as to
which trade performed the work and would take no exception to the
classification used for such work by Greggo & Ferrara, Inc. /FN1/
Upon receipt of this ruling the Steelworkers requested
reconsideration and submitted data to the Wage and Hour Division
which indicated that rebar work performed during the survey period
was performed by workers paid at the ironworkers' rate.
After considering all the information contained in the record,
on March 5, 1982, the Assistant Administrator reaffirmed her
decision which is the subject of this appeal.
After listening to the oral presentations and reviewing the
record, it was obvious to the Board that the information submitted
to the Wage and Hour Division was misleading and/or inaccurate and
full of inconsistencies. Therefore, the Board was compelled to
remand the case on February 7, 1983 to Wage and Hour to conduct a
further investigation into this matter. On April 22, 1983 Counsel
for the Assistant Administrator submitted his statement and
supplemental information [4]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
/FN1/ The initial request by the Delaware Department of
Transportation dated January 30, 1979, for a ruling as to which
craft (laborers or ironworkers) performs the work of tying
reinforcing bars on highway work in the State of Delaware stated
that the contractor, Greggo & Ferrara, Inc., paid laborers' wages
to such workers. [4]
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[5] as directed by the Board. On April 26, 1983, Counsel for
petitioner submitted a supplemental statement and information.
The Board agrees with the long standing principles of Davis-
Bacon and related Acts administration that establish the necessity
to determine prevailing area practice with respect to which
classification of employees performs a particular type of work in
order to determine the applicable prevailing rate required to be
paid under the Acts.
In issuing a wage determination which contained a wage rate for
the classification of reinforcing ironworkers applicable to project
76-01-010, the Wage and Hour Division made an initial area practice
decision as to which trade ties reinforcing iron bars on railroad
bridges in the State of Del[a]ware. See William F. Wilk[e], Inc.,
WAB Case No. 79-06 (June 12, 1980).
The facts of this case do not bear out the conclusion that
there is an area practice that a classification other than
ironworkers performs rebar work on projects similar to project
76-01-010 in the State of Delaware. There must be valid
substantial evidence and [*] not [*] inconsistent, unclear and
contradictory information to overturn an initial finding of area
practice by the Wage and Hour Division. [* Emphasis in original*]
The Wage and Hour Division through its Counsel now has changed
its conclusion reached on March 5, 1982 which was based on
misleading and/or inaccurate information, and finds the facts now
bear out the conclusion that the ironworkers' classification [5]
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[6] and rate is proper in performing rebar work on project 76-01-010.
Based upon the record as it now stands, the Board agrees with
the Wage and Hour Division that rebar work on a railroad bridge is
the work of ironworkers and grants the petition filed by the United
Steelworkers of America.
Accordingly, this matter is remanded to the Delaware Department
of Transportation, the agency with primary enforcement authority
under the Federal-Aid Highway Act, 23 U.S.C. 113 [], to order
Greggo and Ferrara, Inc., to pay back wages at the ironworkers'
rate contained in the applicable wage determination to all
employees engaged in the tying of rebar on Delaware project No.
76-01-010.
Stuart Rothman, Concurring Opinion
I concur in the decision reached herein and add the following
to prevent any misunderstanding or improper expansion of what the
decision does in fact conclude.
The project to which this dispute relates is a railroad bridge
over U.S. 13 south of Wilmington. As such, it would normally
require the use of structural ironworkers. It would also be normal
that such work would be subcontracted to employers using structural
ironworkers. There has been no evidentiary showing to the contrary
and there have been representations that the work in fact was so
subcontracted.
This case initially came to the Wage Appeals Board in the
posture that the parties were talking about tying reinforcing [6]
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[7] bars (rebar) in connection with the laying of forms and the
spreading of concrete on highway construction on land. After the
hearing one of the principal contractors, James Jul[]ian, Inc.,
responded to an inquiry of the Wage Appeals Board as follows: that
when that company had used carpenters for reinforcing iron work on
highway construction, they were paid at the carpenter's rate.
For the foregoing reason I believe that the Assistant
Administrator of the Wage and Hour Division was correct in
principle the first time when she found there was no definitive
area practice with respect to tying rebar on highway construction
on land. However, that principle was misapplied when the facts
turned out that the project involved in this dispute was a railroad
bridge over a highway.
I find no error in requiring that work related to structural
iron work including reinforcing rods on the railroad bridge be
performed at the structural ironworker (building) rate. This
simply was not a case of tying rods in connection with highway
carpenters' other work.
Because of the narrow and limited nature of this decision,
there is no further need to discuss in this decision the nature of
the local union's contracts with highway contractors in the
Delaware area and whether it would effectuate the policies of the
Davis-Bacon Act to apply Davis-Bacon Act principles to [7]
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[8] contracts in which the union and its contractors do not establish
an area wage standard of their own for federal work, but do
establish lower wage rates on non-federal work.
BY ORDER OF THE BOARD
Craig Bulger,
Executive Secretary
Wage Appeals Board [8]
