|
<![CDATA[
CCASE:
ST. FRANCIS HOSPITAL
DDATE:
19860130
TTEXT:
~1
[1] WAGE APPEALS BOARD
UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, D. C.
In the Matter of
ST. FRANCIS HOSPITAL WAB Case No. 85-11
Renovation Project
Cincinnati, Ohio Dated: January 30, 1986
BEFORE: Alvin Bramow, Chairman, Stuart Rothman, Member, Thomas
X. Dunn, Member, Dissenting
DECISION OF THE WAGE APPEALS BOARD
This case is before the Wage Appeals Board on a Petition for
Review of a March 12, 1985 ruling by the Assistant Administrator,
Wage and Hour Division. The petition was filed by the Prevailing
Wage Enforcement Project which is the agent for seven labor unions
in Cincinnati, Ohio. The Assistant Administrator's ruling held that
a wage determination containing residential wage rates was
applicable to the renovation of the 97 year old St. Francis
Hospital in Cincinnati, into a 161 unit apartment building for the
elderly. It is the petitioner's position that a general building
construction wage determination should apply to the project. Since
the developer will receive federal financial assistance from the
Department of Housing and Urban Development for the renovation, the
project will be subject to the labor standards provisions of the
Davis-Bacon Act. [1]
~2
[2] St. Francis Hospital was originally built in 1888. Additions
to the structure have been added from time to time on three sides
of the original structure, the most recent addition was built
in 1965. Because the hospital was built on upwardly sloping
terrain, the height of the main structure is not uniform on
all sides, but decreases in the rear. Also, due to this terrain
the lowest floor level is cut off and does not extend to the
rear of the rest of the original structure. The main building
appears to be five stories tall when viewed from the front and
a portion of the sides. From the back of the building, the
structure appears to be variously three or four stories high.
The Wage and Hour Division has consistently followed a
policy of applying residential wage rates to apartments four
stories or less, and applying general building construction wage
rates to apartment houses over four stories. The latter are
considered to be high-rise apartments. The Assistant Administrator
has ruled that the St. Francis Hospital is four stories and thereby
qualifies for the residential wage rates. The petitioner considers
the structure to be more than four stories, and therefore would
apply general building construction wage rates to the renovation.
The Wage Appeals Board considered this appeal on the basis of
the Petition for Review and a Response Brief filed by petitioner, [2]
~3
[3] a Brief in Support of the Assistant Administrator's
Decision filed on behalf of the owner/developer, and a Brief for
the Assistant Administrator with photographs and floor plans and the
record of the appeal before the Wage and Hour Division submitted to
the Board by the Solicitor of Labor. Since the issue of the appeal
was clear cut, petitioner did not request an oral hearing.
On December 23, 1985, the Board issued a telegraphic decision
with a majority of the Board affirming the decision of the
Assistant Administrator. In that decision the Board indicated that
a more comprehensive opinion would be forthcoming to support the
conclusion set forth therein.
* * *
The Wage and Hour Division has promulgated criteria for the
predetermination of wage rates under the Davis-Bacon and related
Acts. These guidelines are contained in its Manual of Operations.
Residential construction is defined in the guidelines to include
the construction, alteration, or repair of single family houses
or apartment buildings of no more than four stories in height.
The majority believes that their may be some merit to the
petitioner's contention that the building appears to be five
stories and that the project will require the renovation of
more than four stories. But this is the type of dispute which
prompted Wage and Hour to develop further guidelines concerning
residential building height. These guidelines are in pertinent [3]
~4
[4] part as follows:
14. Residential Building Height.
For Davis-Bacon purposes the exterior height of residential
buildings in terms of stories is a primary consideration.
Therefore, when there is a question regarding the distinction
between "residential" and "building", the following criteria
will apply in order to determine a residential building's
height.
A. First Story (First Floor). In most cases the first
story (first floor) is considered the lowermost story when
it is primarily above exterior grade on one or more sides,
contains at least 50% living accommodations or related non-
residential uses such as laundry space, recreation or hobby
rooms, commercial use and related corridor space. However,
if the lowermost story is primarily above ground on two or
more sides, we would consider it to be the first story
without regard to a percentage test. Similarly if the main
entrance to the building is to be the lowermost story, that
would be the first story. Likewise if the lowermost story is
used for apartment space in a way substantially similar to the
upper floors it would be the first floor without regard to
the relationship of that story to the exterior grade.
Stories below grade used for storage, parking, mechanical
equipment or other services are considered basement stories.
Prior to the formulation of these gui[]d[e]lines, it must have
been the experience of Wage and Hour that the construction industry
followed these standards in determining whether a structure is four
stories or less and therefore residential construction, or at least
five stories and therefore building construction. The Wage and Hour
Division has been consistently following these guidelines since
March 1980. Without a showing that they are arbitrary and
capricious or that area practice is to the contrary, the majority
of the Board concludes that they must be followed in order to
determine a residential building's height. [4]
~5
[5] Now, it is necessary to consider the facts of this case in
conjunction with the guidelines set forth above. If any one of
the tests is met, the lowermost story is to be counted and the
project would be a five story "residential building" which for
wage determination purposes the "building" construction rates are
applicable. On the other hand, if none of the tests is met, then
residential rates would apply.
After a review of the entire record, including photographs
of the existing building and annexes and the construction plans,
the majority is convinced that none of the tests is met. /FN1/
Even though one side is primarily above exterior grade, this
lowermost story which is 17,550 square feet will not contain at
least 50% living accommodations or related nonresidential uses
such as laundry space, recreation or hobby rooms, commercial use
and related corridor space. Only 8,721 square feet will be
developed for such purposes. The remainder will not be utilized.
Therefore, this test fails to meet the criteria to be considered
the first story.
Next, it can definitely be said that the lowermost story
is not primarily above ground on two or more sides. Except for
the front, the sides are mostly below ground and the rear of the
structure is completely below ground level. [5]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
/FN1/ It should be noted that the main structure is the only
building that could be considered five stories as the annexed
segments definitely contain only four levels. [5]
~6
[6] Thirdly, if the main entrance to the building is to be the
lowermost story, that would be the first story. It is true that
the main entrance to the St. Francis Hospital was at the center
of the lowermost story of the main structure. This entrance
will still exist and will serve as the visitors' entrance and
lobby entrance. However, because of the disadvantages of this
entrance to the elderly occupants /FN2/ the main entrance to be
utilized by the elderly residents will be the handicapped entrance
located in the rear courtyard. This entrance is not at the
lowermost level in the mainstructure. It is located in an annex
structure containing only four levels. This test also fails to meet
the criteria to consider the project a five story structure.
Lastly, there is no question that the lowermost story is
not being utilized for apartment space in a way substantially
similar to the upper floors. Only two apartments will be
constructed on this level for the use of the maintenance manager
and building manager. The remainder of the developed space will be
non-residential and unsimilar to the upper floors.
In view of the fact that none of the tests contained in the
guidelines have been met, the majority finds that the ruling of
the Assistant Administrator that the structure is four stories,
and that residential construction wage rates are applicable to [6]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
/FN2/ There are numerous steps to the approach of this entrance
which make it impracticable for the elderly to use. [6]
~7
[7] the project is proper.
Additionally, the petitioner seeks a supertechnical
interpretation of what are, to start with, supertechnical rules.
The majority under the circumstances will not add to the
complications by imposing one set of supertechnical rules upon
another. The majority believes it must stay with the Wage and Hour
Division's approach and decides, looking at the structure in its
entirety, that the Assistant Administrator's decision is supported
by as much common sense as any other and affirms on such a ground.
The petition herein is hereby dismissed.
* * *
Member Dunn, Dissenting.
I cannot follow the logic of the majority or the Assistant
Administrator in determining that a five story structure has but
four floors.
The project in question, a former hospital, will be renovated
into a 161 unit apartment. The ground floor (which the majority and
the Assistant Administrator decide is a non-floor) will include the
entrance for visitors, reception desk, office and sitting rooms. It
will also include a card room, mailroom, elevator lobby, activity
space and apartments for the maintenance and building managers, an
electrical equipment room and security alarm equipment room. During
construction a part of this story will be closed but may be
developed later, if funding becomes available. [7]
~8
[8] Although I agree that a basement is not normally considered
as a story to a building, nonetheless because electric and security
equipment is on the main floor, the majority and the Assistant
Administrator believe that this floor has the attributes of a
basement. This is because of certain guidelines established by the
Department to determine the number of stories in a building. These
guidelines also bring the majority and the Assistant Administrator
to the conclusion that the first story is not a story because a
large percent of the space will not be converted into living space
or related nonresidential uses. Actually, this floor contains the
usual facilities contained in the ground and main floors of hotels,
hospitals, apartments and other similar structures. Neither do I
understand the majority or the Assistant Administrator that part of
this floor will be unoccupied and therefore this floor should not
be counted as a story. To me, a five story building, occupied or
vacant, is a five story building.
Under these circumstances, the Assistant Administrator should
have issued the applicable wage determination for this five story
building.
BY ORDER OF THE BOARD
Craig Bulger,
Executive Secretary
Wage Appeals Board [8]
]]>
|
