WATERTOWN HOUSING AUTHORITY, WAB No. 83-08 (WAB Mar. 17, 1983)
CCASE:
WATERTOWN HOUSING AUTHORITY
DDATE:
19830317
TTEXT:
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[1] [83-08TEL.WAB] TELEGRAPHIC MESSAGE
NAME OF AGENCY: U.S. DEPARTMENT OF LABOR, OFFICE OF THE UNDER
SECRETARY, WAGE APPEALS BOARD
ACCOUNTING CLASSIFICATION: 3165-1-5-M-019-75000-2330
DATE PREPARED: 3-17-83 NAME: CRAIG BULGER, EXEC. SECY.
PHONE NUMBER: 523-9039
TO: ALL PERSONS ON THE ATTACHED LIST
RE: WATERTOWN HOUSING AUTHORITY, CONSTRUCTION CONTRACTS G-6 & G-7,
MASONRY RECONSTRUCTION AND RESTORATION, EAST HILLS AND MAYWOOD
TERRACE, NY WAB CASE NO. 83-08 DATED: JUNE 17, 1983
BEFORE: STUART ROTHMAN, ACTING CHAIRMAN, THOMAS X. DUNN, MEMBER,
GRESHAM C. SMITH, ALTERNATE MEMBER
DECISION OF THE WAGE APPEALS BOARD
THE SYRACUSE BUILDING AND CONSTRUCTION TRADES' COUNCIL,
BRICKLAYERS' LOCAL UNION #56 AND CARPENTERS' LOCAL UNION #278 SEEK
REVIEW OF THE WAGE AND HOUR ADMINISTRATOR'S RULING DATED MAY 16,
1983, APPLICABLE TO TWO HOUSING PROJECTS. THE PROJECTS, CONSISTING
OF 28 RESIDENTIAL BUILDINGS, ARE IDENTIFIED AS EAST HILLS AND
MAYWOOD TERRACE, IN WATERTOWN, NY. THE ADMINISTRATOR'S RULING
PERMITS THE LETTING OF THE CONTRACT FOR SPECIFIED MASONRY WORK ON
THE TWO PUBLIC HOUSING PROJECTS AT PREVAILING WAGE RATES DETERMINED
BY THE SECRETARY OF HOUSING AND URBAN DEVELOPMENT (HEREINAFTER HUD). [1]
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[2] A HEARING ON THIS SAME MATTER HAS BEEN PENDING IN THE U.S.
DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK. THE WAGE
APPEALS BOARD (PER A STIPULATION FOR POSTPONEMENT OF THE COURT
ACTION) SCHEDULED AN EXPEDITED HEARING ON THE PETITION FOR JUNE 9,
1983. THE ORIGINAL PETITION CITED CONTRACTS G-6 FOR BRICK WORK AND
G-7 FOR MASONRY WORK. THE ADMINISTRATOR'S RULING ON MAY 16, 1983,
HOWEVER, HELD THAT CONTRACT G-7 WAS SUBJECT TO THE DAVIS-BACON ACT.
CONTRACT G-7 IS NO LONGER CONTESTED BY THE PETITIONER.
CONTRACT G-6 CALLS FOR CLEANING, REPOINTING AND SEALING OF
EXISTING BRICK WALLS AND THE REPLACEMENT OF BRICKS WHERE NEEDED ON
THE TWO HOUSING PROJECTS. THE CONTRACT CALLS FOR 220 LINEAR FEET
OF MORTAR TO BE REPOINTED, AND 260 BRICKS TO BE REPLACED. TWO
STONE WINDOW SILLS ARE TO BE RESET. THE MASONRY FOUNDATION IS TO
BE PATCHED AS NEEDED. CONTRACT G-6 IS TO BE FUNDED UNDER THE
COMPREHENSIVE [2]
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[3] IMPROVEMENT ASSISTANCE PROGRAM (CIAP) OF THE UNITED STATES HOUSING
ACT OF 1937. THIS ACT REQUIRES THE SECRETARY OF HUD TO DETERMINE
PREVAILING WAGE RATES TO BE PAID TO THE CONTRACTOR'S EMPLOYEES
PERFORMING THE WORK. IN THIS DETERMINATION THE SECRETARY OF HUD IS NOT
REQUIRED TO CONSIDER THE PREVAILING WAGE DETERMINATIONS OF THE SECRETARY
OF LABOR MADE PURSUANT TO THE DAVIS-BACON ACT. IN THIS CASE, THE
PREVAILING WAGES DETERMINED BY HUD WERE APPROXIMATELY ONE-HALF THOSE
DETERMINED BY THE SECRETARY OF LABOR UNDER THE DAVIS-BACON ACT. THE
SYRACUSE BUILDING CONSTRUCTION TRADES' COUNCIL BROUGHT THIS APPEAL TO
THE BOARD CLAIMING THE DAVIS-BACON ACT APPLIED.
PETITIONERS ARGUE THAT IF THE WORK PROPOSED UNDER CONTRACT
G-6 IS ADVERTISED AND AWARDED TO A CONTRACTOR FOR EXECUTION BY THE
CONTRACTOR (AND NOT PERFORMED BY THE LOCAL HOUSING AUTHORITY'S OWN
EMPLOYEES), OR IF "DEVELOPMENT" [3]
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[4] FUNDS AS DEFINED IN SECTION 3, U.S. HOUSING ACT, 42 U.S.C. [SEC]
1437a, ARE USED, THEN THE CONTRACT SHOULD BE SUBJECT TO DAVIS-BACON ACT
PROVISIONS. THIS WOULD REQUIRE THE INCLUSION IN THE CONTRACT OF
PREVAILING MINIMUM WAGE RATES DETERMINED BY THE SECRETARY OF LABOR, NOT
THE SECRETARY OF HUD. COUNSEL FOR THE ADMINISTRATOR TAKES THE POSITION
THAT THE WORK PROPOSED UNDER CONTRACT G-6 IS ACTUALLY MAINTENANCE, OR
DEFERRED MAINTENANCE (A TERM INTRODUCED INTO THE MATTER BY THE SOLICITOR
OF LABOR IN A LETTER ISSUED FEBRUARY 4, 1983, TO THE GENERAL COUNSEL,
HUD, CONCERNING WORK PERFORMED UNDER CIAP). THE WORK IN QUESTION IN
CONTRACT G-6 IS CHARACTERIZED BY THE ADMINISTRATOR AS NOT SUBSTANTIAL:
THAT IS, WORK THAT COULD CONCEIVABLY HAVE BEEN PERFORMED BY THE
AUTHORITY'S OWN EMPLOYEES, ALTHOUGH IN THIS INSTANCE THE AGENCY DECIDED
TO AWARD THE WORK TO A PRIVATE CONTRACTOR. THE ADMINISTRATOR ARGUES
THAT THIS DOES NOT CHANGE THE CHARACTER OF THE [4]
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[5] UNDERTAKING TO WORK SUBJECT TO THE DAVIS-BACON ACT. IF THE
ADMINISTRATOR'S CONTENTION IS CORRECT THE EMPLOYEES WORKING ON G-6 WILL
BE SUBJECT TO PREVAILING WAGES AS DETERMINED BY THE SECRETARY OF HUD.
"MAINTENANCE" HAS NEVER BEEN SUBJECT TO DAVIS-BACON PREVAILING
WAGE RATES. MOST FEDERAL OR FEDERALLY-ASSISTED "CONSTRUCTION" HAS
BEEN SUBJECT TO THE ACT. AT THE JUNE 9, 1983, HEARING, IT BECAME
CLEAR THAT THE TERM "REPAIR" DOES NOT HELP TO RESOLVE THE ISSUE AT
HAND. ACCORDING TO PETITIONER AND THE ADMINISTRATOR, NEITHER THE
DAVIS-BACON ACT, THE CIAP NOR THE LEGISLATIVE HISTORY SHOW
CONGRESSIONAL INTENT, AS TO THE DISTINCTION BETWEEN "CONSTRUCTION"
AND "MAINTENANCE" AS USED IN THE CIAP PROVISION.
THE BOARD IS COMPELLED TO RESTRICT THIS DECISION SOLELY TO
THIS CASE, AND ANNOUNCES NO BROAD PRINCIPLE. THE BOARD HAS BEEN
ADVISED THAT THE DEPARTMENTS OF HUD AND LABOR [5]
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[6] HAVE UNDERTAKEN TO SET UP MACHINERY TO DEAL WITH THE DIFFICULT
PROBLEMS RESULTING BETWEEN THE DEFINITIONS OF THE TERMS "CONSTRUCTION"
AND "MAINTENANCE" IN THE TWO ACTS AND TO PROVIDE EARLY AND CONSISTENT
FUTURE REVIEW ON A CASE-BY-CASE, BASIS. BEFORE THE WAGE APPEALS BOARD
UNDERTAKES TO ADDRESS THIS PROBLEM IN TERMS OF WIDE-SPREAD APPLICATION,
IT WOULD LIKE TO SEE WHAT GUIDELINES THE DEPARTMENT OF LABOR COMES UP
WITH. THE WAGE APPEALS BOARD IS NOT DISPOSING OF THIS CASE ON THE
GROUND THAT THE G-6 CONTRACT IN THE APPROXIMATE AMOUNT (ESTIMATED) OF
$100,000 IS NOT SUBSTANTIAL.
THE BOARD DOES NOT BELIEVE THAT THE ADMINISTRATOR'S
REPRESENTATIVES IN THIS DISPUTE HAVE GIVEN THE BOARD A STRONG,
WELL-DOCUMENTED RECORD OF EITHER THE HISTORICAL LEGISLATIVE
DEVELOPMENT OF THE CIAP PROVISION OR THE CONTEMPORANEOUS
ADMINISTRATIVE INTERPRETATION OF THE TWO DIFFERENT STANDARDS [:]
ONE APPLICABLE WHEN LABORERS AND MECHANICS PERFORM CONSTRUCTION [6]
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[7] WORK AND WHAT IS SO DEFINED, AND THE OTHER WHEN LABORERS AND
MECHANICS PERFORM SIMILAR WORK BUT CHARACTERIZED DIFFERENTLY AS
MAINTENANCE WORK. AT SOME OTHER TIME AND AFTER ADDITIONAL SEARCH,
THE OFFICE OF THE SOLICITOR MAY BE IN A BETTER P[]OSITION TO REASON
OUT THE ELEMENTS OF THIS DISPUTE TO AN ACCEPTABLE AND
UNDERSTANDABLE CONCLUSION.
BUT WEAK AS IS THE ADMINISTRATOR'S POSITION (BECAUSE IT DOES
NOT GIVE THE BOARD A SUBSTANTIAL BASIS ON WHICH TO RESOLVE THE
MATTER TO A CLEARLY PERCEIVED CONCLUSION) THE PETITIONER'S POSITION
AT THIS TIME IS EVEN MORE LACKING IN A SUREFOOTED BASIS TO JUSTIFY
SETTING THE ADMINISTRATOR'S DECISION ASIDE. IN THE ABSENCE OF
DEMONSTRABLY COMPELLING REASONS SUPPLIED BY THE PETITIONER, THE
BOARD IS NOT LEFT WITH A FIRM IMPRESSION THAT THE ADMINISTRATOR HAS
MADE A MISTAKE. ACCORDINGLY, THE BOARD WILL LEAVE THE
ADMINISTRATOR'S DECISION AS IT APPLIES TO CONSTRUCTION CONTRACT G-6
IN PLACE AND [7]
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[8] LEAVE IT TO THIS PETITIONER OR ANOTHER TO RAISE THE MATTER IF AND
WHEN IT CAN PRODUCE SUBSTANTIAL AND COMPELLING HISTORICAL LEGISLATIVE
EVIDENCE OR CONTEMPORANEOUS ADMINISTRATIVE INTERPRETATION TO SHOW THAT
THE ADMINISTRATOR HAS EXCEEDED THE PERMISSIBLE LIMITS OF ADMINISTRATIVE
DISCRETION, AND APPRAISAL BASED UPON THE DEPARTMENT OF LABOR'S
EXPERIENCE AND EXPERTISE IN DAVIS-BACON MATTERS.
THE DEPARTMENT OF LABOR SINCE THE TIME THE DAVIS-BACON ACT
BEGAN HAS NOT BEEN KNOWN TO SHIRK THE APPLICATION OF THE ACT IN ANY
CASE WHERE CONGRESSIONAL INTENT IS EITHER EXPLICIT OR REASONABLY TO
BE IMPLIED. ALTHOUGH TIMES DO CHANGE, THE BOARD BELIEVES THAT
UNDER THE CIRCUMSTANCES OF THIS CASE THE DEPARTMENT OF LABOR IS
ENTITLED TO THE BENEFIT OF ANY DOUBT AS TO THE NONAPPLICATION OF
THE DAVIS-BACON ACT WHEN IT HAS CONCLUDED AS IT HAS HERE THAT THIS
IS A SITUATION WHERE THE CONGRESS DID NOT INTEND THAT THE DAVIS- [8]
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[9] BACON ACT SHOULD APPLY. THE ADMINISTRATOR AND THE
DEPARTMENT OF LABOR CANNOT GET AHEAD OF THE CONGRESS IN SAYING THAT
THE DAVIS-BACON ACT DOES NOT APPLY WHEN IT DOES. WE REPEAT,
HOWEVER, THAT THE BOARD DOES NOT ACCEPT AS A BROAD PRINCIPLE THE
ADMINISTRATOR'S SUBSTANTIALITY TEST, AS HERE MADE.
IN THIS CASE THE BOARD IS UNABLE AFTER A STUDY OF THE BRIEFS
AND ORAL ARGUMENTS TO DETERMINE THE CONGRESSIONAL INTENT. THE
BOARD IS NOT THEREFORE IN A POSITION TO STATE THAT THE
ADMINISTRATOR'S DECISION AS TO THAT INTENT IS WRONG. THE BOARD,
UNTIL MORE DEFINITIVE EVIDENCE IS IN CONCERNING CONGRESSIONAL
INTENT, WILL HAVE TO DEFER TO THE ADMINISTRATIVE EXPERTISE. IN
THIS WAY THE BOARD WILL NOT, AT THIS TIME, STRUCTURE OR CONFINE
REASONABLE RULES HUD AND DOL MAY WORK OUT, BUT WILL WAIT UNTIL SUCH
RULES ARE DEVELOPED TO EXAMINE THEM, KNOWING THAT THE DOL IS NOT
ABOUT TO GIVE THE [9]
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[10] DAVIS-BACON ACT OR ANY OF ITS PARTS AWAY.
THE BOARD EXPRESSES NO OPINION ON THE LIKELIHOOD OF SUCCESS
IF THE PETITIONER WERE TO ADVANCE ITS CAUSE IN ANOTHER PROCEEDING.
HOWEVER, THE DECISION HEREIN DOES NOT PRECLUDE THIS PETITIONER OR
ANOTHER FROM DOING SO AT SOME FUTURE TIME. FOR THESE REASONS THE
BOARD AFFIRMS THE DECISION OF THE ADMINISTRATOR WHICH DETERMINES
THAT THE WORK CALLED FOR IN CONTRACT G-6 IS WORK TO BE ACCOMPLISHED
UNDER THE CIAP WITH PREVAILING WAGE RATES DETERMINED BY THE
SECRETARY OF HUD.
IN VIEW OF THE FOREGOING, THE PETITION HEREIN IS DENIED, AND
HEREBY DISMISSED.
BY ORDER OF THE BOARD
CRAIG BULGER,
EXECUTIVE SECRETARY,
WAGE APPEALS BOARD [10]
