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<![CDATA[
CCASE:
ABC PAVING CO.
DDATE:
19850927
TTEXT:
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[1] WAGE APPEALS BOARD
UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, D. C.
In the Matter of
ABC PAVING CO., Prime Contractor WAB Case No. 85-14
ECO Bridge Inc., Subcontractor
Proj. No. I 990-1, Lockport Express Dated: September 27, 1985
BEFORE: Alvin Bramow, Chairman, Thomas X. Dunn, Member
Stuart Rothman, Member
DECISION OF THE WAGE APPEALS BOARD
This case is before the Wage Appeals Board on the petition of
ECO Bridge, Inc., (hereinafter ECO) seeking review of a ruling of
the Director, Division of Contract Standards Operations, on behalf
of the Assistant Administrator, Wage and Hour Division, dated March
8, 1985. In the ruling, Wage and Hour held that ECO failed to pay
some of its employees the required prevailing wage rates under the
Federal-Aid Highway Act (FAHA), a Davis-Bacon related Act, and
overtime compensation required under the Contract Work Hours and
Safety Standards Act (CWHSSA). ECO argues that the operations in
question were not subject to the Davis-Bacon Act or CWHSSA because
the work was performed at a manufacturing facility which was not a
part of the "site of work" for Davis-Bacon and CWHSSA purposes. [1]
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[2] ECO was a subcontractor to ABC Paving Company (ABC) which was
awarded a highway construction contract for the Lockport Expressway
from the State of New York that was funded by the U.S. Department
of Transportation. The project was subject to Davis-Bacon Act and
CWHSSA labor standards provisions. Specifically, ECO's subcontract
was to furnish and install wooden sound barrier walls for the
highway being constructed. The initial construction of 4' x 30'
wooden sound panels was performed at ECO's plant at some distance
from the project. It was intended that the panels would be bolted
together into 20' x 30' segments and be installed by ECO at the
project site. However, because of a labor dispute between the two
companies, ECO's employees were not allowed to assemble the panels
on the job site. Therefore ECO rented a warehouse approximately 3
miles from the project at which to assemble the panels. ECO's
truck drivers then delivered the panels to the job site where
they were installed by ABC's employees under ECO's supervision.
A Wage and Hour investigation disclosed that EC0 was not
paying 5 employees working at the warehouse and driving the
assembled panels to the job site the Davis-Bacon prevailing wage
rates. Their employees who were required to complete their
subcontract were laborers, truck drivers and a power equipment
operator. In addition, 4 employees did not receive overtime pay
called for by CWHSSA for hours worked in excess of 8 hours per day
or 40 hours per week. Total back wages of [2]
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[3] $6,464.36 were computed by Wage and Hour, of which $5,872.85 were
for the prevailing wage violations and $591.51 were for overtime
violations. No restitution has been made.
As indicated above, ECO's position is that the Davis-Bacon
Act is applicable only to work at the "site-of work" and that their
activities at the warehouse were a continuation of the
manufacturing process, in a controlled work environment similar to
those at their manufacturing plant. Therefore, it is argued, their
employees should be paid at the same prevailing wage as those paid
in the manufacturer's industry, and not those of the construction
market.
The Wage and Hour Division relies on a line of cases decided
by this Board which have broadly defined, in a geographic sense,
the term "directly upon the site of the work" (the statutory
language of the Davis-Bacon Act. The Wage and Hour Division
applies both a geographical and a functional test to determine
whether an activity is being performed at the site of the work.
Wage and Hour points out that in one decision of the Board,
work performed at a warehouse 9 miles from the job site, and which
was performed exclusively to complete the construction activity was
subject to the Davis-Bacon Act labor standards provisions. /FN1/
Also, Wage and Hour relies on the fact that no evidence has been
produced to show that ECO used the warehouse [3]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
/FN1/ Mayfair Construction Company, WAB Case No. 81-16 (April 18,
1983). [3]
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[4] operation for any purpose other than assembly of the wooden
panels to be installed at ABC's construction site.
With reference to the truck drivers, Wage and Hour also
relies on the statutory language of the Davis-Bacon Act as the
basis for covering their activities.
The Wage Appeals Board considered this appeal on the basis
of a petition for review filed by ECO, and the record of the
appeal before the Wage and Hour Division and a stat[e]ment on
behalf of the Administrator filed by the Solicitor of Labor.
No request for an oral hearing was received by the Board.
* * *
After considering the statements herein it is clear that the
issue had been addressed in the Board's recent decision United
Construction Company, Inc., WAB Case No. 82-10 (January 14, 1983)
and cited in Mayfair Construction Company, supra. In the United
case the Board stated at page 7:
In the past the Board has found in appeals before
it which question whether a certain activity is or
is not on the site of work, that there is a prima
facie presumption that supporting activities
associated with the primary project are covered by
the labor standards provisions of the various acts.
The Board then looks at the evidence associated with
the support activities to judge on a case by case
basis whether the activities are sufficiently
independent of the primary project to determine
that the function of the support activities may be
viewed as similar to that of a materialman and
therefore not subject to the coverage of the Davis-
Bacon Act or related acts. [4]
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[5] In the instant case the Board finds that the Wage and Hour
Division followed its standard and consistent policy of 10 years
or more in arriving at its decision. The "site of work" upon
which petitioner tries to rely in its argument is not just the
highway project (Lockport Expressway), but includes the warehouse
where petitioner assembled the wood panels which made up the
sound barrier wall to be installed on the side of the highway
under construction. It is not the Board's position that the
purpose of assembling the panels three miles away from the
highway was to avoid Davis-Bacon coverage. It is apparent that
practicality and convenience dictated that the assembling of the
panels could not be performed at the highway site and that this
was the nearest location where the work could be accomplished.
There has been a line of Board decisions which include
T.L. James and Company, WAB Case No. 69-02 (August 13, 1969),
Ameron; Inc., WAB Case No. 73-07 (September 14, 1973), Sweet
Home Stone Co., WAB Case No. 75-01 (August 4, 1975) and Big Six
Inc., WAB Case No. 75-03 (July 21, 1975) which have held that
"site of work" can include rock quarries, borrow pits, pipe
fabrication facilities, and batch plants which are not physically
at the location where the construction project is located but
nevertheless have been considered to be part of the "site of
work" for Davis-Bacon purposes. [5]
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[6] In its most recent decision in this regard, Mayfair
Construction Company, supra, the Board did not have difficulty
finding that the distance of nine miles between a missile silo and
the warehouse where the ac[]oustical modules were repaired
constituted a single site of work for Davis-Bacon Act coverage
purposes. In some of the earlier cases the question of whether the
so-called remote site was dedicated exclusively or nearly so to the
construction project has been of significance. In the instant
case, the record is clear that petitioner's work at the warehouse
was exclusively performed to accomplish the construction activity.
This functionalism controls the Board's decision on these facts.
The work which was performed at the warehouse was unquestionably
part of the highway construction project and would have to have
been performed wherever it could be accomplished most
expeditiously. The geographic question of the three miles distance
between the warehouse and the highway site is only one aspect of
the question and under these facts it is not controlling.
Accordingly, the petition herein is dismissed for the reasons
stated. The decision of the Director of the Division of
Contract Standards Operations on behalf of the Assistant
Administrator is hereby affirmed.
BY ORDER OF THE BOARD
Craig Bulger,
Executive Secretary
Wage Appeals Board [6]
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