|
<![CDATA[
CCASE:
LAYNE-NORTHERN COMPANY
DDATE:
19851219
TTEXT:
~1
[1] WAGE APPEALS BOARD
UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, D. C.
In the Matter of
LAYNE-NORTHERN COMPANY - Subcontractor
Drill Deep Water Well & Construct WAB Case No. 85-15
Fort Benjamin Harrison, Indiana Dated: December 19, 1985
DABT-15-80-C-0138
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
Layne-Northern Company (hereinafter Layne-Northern or petitioner)
seeking review of a ruling under [sec] 5.11(c)(1) of the
regulations, 29 CFR Part 5, by the Assistant Administrator, Wage
and Hour Division, that Layne-Northern's challenge to a wage
determination was untimely.
The facts established by the record of the appeal before the
Wage and Hour Division show that in September, 1980, Preston
Construction Company was awarded a prime contract for $88,445
by the Department of the Army to replace a water well and related
work at Fort Benjamin Harrison in Marion County, Indiana.
The contract for the project was subject to both the Davis-
Bacon Act and the Contract Work Hours and Safety Standards Act
and the regulations pertaining thereto. It contained the required [1]
~2
[2] labor standards clauses and Wage determination IN 80-2015
which set wage rates and listed classifications for construction in
Marion County, in addition to other locations. The wage
determination did not contain a classification and wage rate for
"hydrological services", but did contain classifications and
wage rates for laborers and power equipment operators.
In September, 1980, petitioner Layne-Northern submitted a
bid to the prime contractor to provide materials, labor and
equipment for certain phases of the prime contract. Petitioner
had its own copy of the prime contract and the specifications which
included the aforementioned labor standards provisions. Primarily,
petitioner was to clear the land, to construct the new water well
and connect it into the existing system.
An investigation by the Department of Labor of the contract
work revealed that Layne-Northern did not pay 16 employees the
required wage rates for hours worked on the subcontract. It is
also alleged that 8 of petitioner's employees did not receive
overtime compensation at the required wage rate. Petitioner
classified all of its employees as either foremen or helpers,
neither of which classification was included in the applicable
wage determination. In a period from November, 1980 through
December, 1981, Layne-Northern paid its employees wages from
32% to 43% lower than the corresponding rates issued in wage
determination IN 80-2015 for the work performed. The wage rates
paid were also lower than any rates contained in the wage
determination [2]
~3
[3] The Wage and Hour Division computed back wages of $6,138.20
due to 16 of petitioner's employees. After petitioner was notified
of this, it refused to make restitution to the employees and at
that point, March 15, 1982, questioned the wage rates applied
to the project. It claimed that the wages it paid were those
prevailing in the water well construction industry. In March,
1982, Wage and Hour requested the Department of the Army to
withhold the funds necessary to pay the back wages. Petitioner
subsequently agreed to the Army's request and authorized the
disbursement of funds to employees, pending a decision on this
appeal.
From September, 1984 to March 8, 1985 Wage and Hour conducted
a wage rate [] survey in Marion and adjacent counties of
contractors and unions engaged on projects similar to the water
well construction which is here in question. This survey related
to construction which occurred just prior to the start of
petitioner's contract. Following this survey the Assistant
Administrator, Wage and Hour Division, issued a final ruling
confirming that wage determination IN 80-2015 applied to the
project, and noting that petition[er] did not contest the wage
rates in the wage determination until more than one year after the
prime contract was signed and after the start of construction. For
this reason the Assistant Administrator [3]
~4
[4] held that petitioner's challenge to the wage determination was
untimely.
Layne-Northern has contended to the Board that the wage rates
contained in the wage determination issued by the Wage and Hour
Division are not those which are paid and prevail on water well
construction. To support this position, petitioner has submitted
to the Board a "Special Wage Survey" collected by an independent
management consultant which contains wage rate data supplied by
nine organizations performing water well type construction. This
information was collected in October, 1984, and indicates that the
wage rates issued by Wage and Hour are higher than those evidenced
from the survey. Petitioner requests the Board to reverse the
decision of the Assistant Administrator and to order that the back
wages being withheld by the Department of the Army be paid over to
it.
The Wage and Hour Division argues that the petitioner did
not question the wage rates issued in the applicable wage
determination until 18 months after bid opening and the start of
construction which, they assert, is contrary to a long line
of decisions of the Board. It is also argued that petitioner is
in error in contending that water well drillers should not be
classified under heavy and highway construction. Wage and Hour
urges the Board to discount the wage survey of water well
contractors which was not provided to the Wage and Hour Division
and was first offered in this appeal. Wage and Hour asserts that
petitioner's survey does not cover a time period [4]
~5
[5] prior to contract award but instead the wage data appears to be
taken from projects built 3 to 4 years after the start of construction,
the area covered by petitioner's survey is not defined and there is no
showing that the projects were in Marion County, Indiana, or adjacent
counties. Furthermore, Wage and Hour claims that if petitioner's appeal
is treated as a request for an additional classification, it does not
conform to the Department's regulations. Finally, Wage and Hour relies
on its survey to support its claim that wage rates negotiated with
building trades unions in Marion County were found to be prevailing.
The Wage Appeals Board considered this appeal on the basis
of the Petition for Review filed by Layne-Northern, the Statement
on Behalf of the Assistant Administrator and the record of the
appeal before the Wage and Hour Division which were filed by the
Solicitor of Labor. The petitioner provided the Board with a
statement that it did not request an oral hearing, therefore the
Board has considered this appeal on the record before it.
* * *
It appears to the Board that the petitioner is challenging
the classifications and wage rates contained in the wage
determination made applicable to the construction work in question.
Petitioner relies on the fact that the wage decision issued is
clearly erroneous and that a corrected decision should be provided
and made applicable to the project. [5]
~6
[6] The petitioner's challenge of the classifications and wage
rates after contract award comes within the Department of Labor's
Regulations 29 CFR 1.6(f) published on April 28, 1983 (48 FR
19,532), effective on June 28, 1983. This regulations reads as
follows:
The Administrator may issue a wage determination after
contract award or after the beginning of construction
if the agency has failed to incorporate a wage determination
in a contract required to contain prevailing wage rates
determined in accordance with the Davis-Bacon Act, or has
used a wage determination which by its terms or the
provisions of this part clearly does not apply to the
contract. Further, the Administrator may issue a wage
determination which shall be applicable to a contract after
contract award or after the beginning of construction when it
is found that the wrong wage determination has been
incorporated in the contract because of an inaccurate
description of the project or its location in the agency's
request for the wage determination. Under any of the above
circumstances, the agency shall either terminate and
resolicit the contract with the valid wage determination,
or incorporate the valid wage determination retroactive to
the beginning of construction through supplemental
agreement or through change order, Provided that the
contractor is compensated for any increases in wages
resulting from such change. The method of incorporation
of the valid wage determination, and adjustment in
contract price, where appropriate, should be in accordance
with applicable procurement law.
The contract was awarded prior to the effective date of the
above regulations and, therefore, the regulation would have no
application regarding this case. Even assuming 29 CFR 1.6(f) was
applicable, the record does not show that the classifications and
wage rates contained in the wage determination are clearly
erroneous. The Wage and Hour Division conducted an area practice
survey for the purpose of helping to clarify the petitioner's
allegation that the classifications and wage rates issued for the [6]
~7
[7] project are not those applicable to hydrological service
work. The results obtained from this survey certainly show that
the work could be performed using the classifications already
included in the original wage determination issued for the contract
work and that the wage rates contained therein are those prevailing
for such work.
Under the facts of this case, the Board's holding in its
most recent decisions, Warren Oliver Company, WAB Case No. 84-08
(November 20, 1984) and Rite Landscape Construction Co.,
WAB Case No. 83-03 (October 18, 1983), would be controlling.
In those cases the Board stated that the time to have come to
the contracting agency and/or the Wage and Hour Division to show
that the classifications and wage rates furnished for this
project were not those actually prevailing was prior to bid
opening and contract award. To do so after bid opening and
contract award was untimely. The Board has so held since its
first decision in 1964. See Huntsville-Madison County Airport,
WAB Case No. 64-01 (August 31, 1964), Fry Brothers Corp.,
WAB Case No. 76-06 (June 14, 1977), Southeastern Capital Corp.,
WAB Case No. 78-12 (Jan. 16, 1979), Holloway Sand and Gravel
Trucking, Inc., WAB Case No. 79-13 (Jan. 16, 1980), Jordan &
Nobles Construction Co. & W.R. Pierce & Associates, WAB Case
No. 81-18 (August 19, 1983).
Once a contract has been awarded, there is only one method
by which a contracting agency or Wage and Hour can provide
additional [7]
~8
[8] classification[s] which have not been listed in the wage
determination made applicable to the contract and which the contractor
needs to perform the contract. That method is provided for in the
Department of Labor's Regulations at 29 CFR 5.5(a)(1)(ii) which reads as
follows:
The contracting officer shall require that any class of
laborers or mechanics, including apprentices and trainee
which is not listed in the wage determination and which
is to be employed under the contract, shall be classified
or reclassified [*] conformably [*] to the wage
determination and a report of the action taken shall be
sent by the Federal agency to the Secretary of Labor.
In the event the interested parties cannot agree on the
proper classification or reclassification of a particular
class of laborers and mechanics, including apprentices
and trainees, to be used, the question accompanied
by the recommendation of the contracting officer shall
be referred to the Secretary for final determination.
[*] (Emphasis added). [*]
To give any meaning to this regulation, the work performed by the
classification(s) requested is not performed by a classification(s)
in the wage determination. As heretofore pointed out the record
definitely shows that the work can and is also performed by
classifications contained in the wage determination. It is not
necessary that the classification in the wage determination be the
prevailing ones, but only that the work in question in the area be
performed by classifications of workers contained in the wage
determination. The record satisfies this requirement and,
therefore, the additional classifications must [8]
~9
[9] be denied.
In view of the foregoing, the decision of the Assistant
Administrator is affirmed and the petition is dismissed.
* * *
Stuart Rothman concurring in the result.
BY ORDER OF THE BOARD
Craig Bulger,
Executive Secretary
Wage Appeals Board [9]
]]>
|
