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<![CDATA[
CCASE:
MILITARY HOUSING FORT DRUM
DDATE:
19850729
TTEXT:
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[1] [85-16.TEL DECISION] TELEGRAPHIC MESSAGE
NAME OF AGENCY: U.S. DEPARTMENT OF LABOR, OFFICE OF THE UNDER
SECRETARY
ACCOUNTING CLASSIFICATION: 5165-1-5-M-019-75000-2330
NAME PHONE NUMBER
CRAIG BULGER, EXEC. SECY. 523-9039
MESSAGE TO BE TRANSMITTED
TO: ALL INTERESTED PERSONS ON THE ATTACHED LIST:
RE: IN THE MATTER OF MILITARY HOUSING FORT DRUM
NEW YORK, WAB CASE NO. 85-16
BEFORE: ALVIN BRAMOW, CHAIRMAN, STUART ROTHMAN, MEMBER AND
THOMAS X. DUNN, MEMBER
DECISION OF THE WAGE APPEALS BOARD
THE FOLLOWING WAGE APPEALS BOARD TELEGRAPHIC DECISION IS
ISSUED PURSUANT TO THE REQUEST OF ALL PARTIES FOR AN EXPEDITIOUS
DECISION. A MORE COMPREHENSIVE OPINION WILL BE ISSUED LATER.
IN REACHING THIS DECISION THE BOARD HAS CONSIDERED THE
PETITION FOR REVIEW AND AN ACCOMPANYING STATEMENT OF POINTS AND
AUTHORITIES SUBMITTED BY COUNSEL FOR THE BUILDING AND CONSTRUCTION
TRADES DEPARTMENT AFL-CIO, THE RECORD OF THE APPEAL BEFORE THE WAGE
AND HOUR DIVISION AND A STATEMENT ON BEHALF OF THE DEPUTY
ADMINISTRATOR FILED BY THE SOLICITOR OF LABOR, AMICUS CURIAE BRIEFS
FILED BY THE ASSOCIATED BUILDERS AND CONTRACTORS, INC., AND THE
ASSOCIATED GENERAL CONTRACTORS OF AMERICA, AND A STATEMENT [1]
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[2] OF POINTS AND AUTHORITIES IN SUPPORT OF THE DEPUTY ADMINISTRATOR
SUBMITTED BY COUNSEL FOR THE DEPARTMENT OF DEFENSE, AND INFORMATION
SUBMITTED BY ALL INTERESTED PARTIES AT AN ORAL PRESENTATION BEFORE
THE BOARD ON JULY 24, 1985.
THE BUILDINGS IN THE HOUSING PROJECTS WHICH ARE THE SUBJECT OF
THIS APPEAL TO THE WAGE APPEALS BOARD ARE CONSTRUCTED TO THE ORDER
OF THE DEPARTMENT OF DEFENSE AT MILITARY BASES, ALTHOUGH NOT ON THE
BASES THEMSELVES, FOR THE SOLE AND EXPRESS PURPOSE OF HOUSING FOR
THE MILITARY FOR THE FIRST 20 YEARS OF THE PROJECT'S LIFE (EVEN
ASSUMING THAT THE LIFE OF A PROJECT IS MORE THAN 20 YEARS). THIS
PROPERTY IS TURNED OVER TO THE MILITARY PURSUANT TO A PLAN AGREED
UPON IN ADVANCE AND BUT FOR WHICH THERE WOULD BE NO PROJECT. THIS
IS IMPLICIT IN THE STATUTE ITSELF. UNDER THESE CONDITIONS, THESE
PROJECTS ARE DESIGNED AND DIRECTED TO BE PUBLIC WORKS OF THE UNITED
STATES FOR THE FIRST 20 YEARS OF THEIR LIFE. WHILE AFTER THE
FIRST 20 YEARS THEY MAY BECOME SOMETHING ELSE, THIS DOES NOT [2]
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[3] CHANGE THE FACT THAT THESE ARE PUBLIC BUILDINGS FOR THE
FIRST 20 YEARS. AS SUCH, THEY ARE CONSTRUCTED AS PUBLIC BUILDINGS
AND IF IT WERE NOT FOR THIS STATUTORY PROGRAM FOR THE ACQUISITION
OF THESE BUILDINGS TO BE DEVOTED TO PUBLIC USE AND PUBLIC PURPOSE
BY THE MILITARY, THEY WOULD NOT HAVE BEEN CONSTRUCTED AT ALL. WE
CONCLUDE THEREFORE THAT THE DAVIS-BACON ACT REQUIRES THAT MINIMUM
PREVAILING WAGES FOR CONSTRUCTION OF THIS KIND OF HOUSING IN EACH
PARTICULAR LOCALITY WILL BE APPLICABLE. THE BOARD DOES NOT
CONCLUDE FROM A READING OF THE STATUTE THAT THE CONGRESS INTENDED
THAT COST EFFECTIVENESS MEANT THAT LABORERS AND MECHANICS ON THESE
PROJECTS SHOULD BE PAID LESS THAN THE PRIVATE HOUSING INDUSTRY IS
PAYING TO HAVE SUCH HOUSING BUILT FOR NON-DOD USE. THE WAGE AND
HOUR ADMINISTRATOR IS OBLIGATED TO GIVE THE DOD AND THE BIDDERS A
RESPONSE TO THE REQUEST FOR PROPOSALS A TRUE AND REALISTIC
COMPUTATION OF WHAT THOSE WAGE RATES ARE. THIS IS A QUESTION OF
FACT WITH RESPECT TO EACH OF THESE PROJECTS [3]
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[4] AND REQUIRES MORE ON THE PART OF THE WAGE AND HOUR ADMINISTRATOR
THAN BLIND ACCEPTANCE OF CLAIMS MADE BY ANY SEGMENT OF THE HOME BUILDING
INDUSTRY IN THAT LOCALITY. IF THE DAVIS-BACON ACT IS TO BE
ADMINISTERED, IT MUST BE ADMINISTERED FAIRLY -- TO READ AND REFLECT WAGE
RATE CONDITIONS FOR THIS KIND OF HOUSING BEING BUILT IN THE LOCALITY BY
PRIVATE BUILDERS FOR PRIVATE USE. NO ONE CAN ASK FOR MORE OR LESS THAN
THIS UNDER THE DAVIS-BACON ACT.
THE WAGE AND HOUR DIVISION SHOULD DO SOME PILOT SURVEYS IN
CONNECTION WITH THESE PROJECTS FROM THE GROUND UP AND NOT FROM
HYPOTHETICAL OR ASSUMED SITUATIONS DOWN. OF COURSE, THE DOD DID
NOT MAKE ARRANGEMENTS OR ALLOWANCES WITH THE WAGE AND HOUR
ADMINISTRATOR FOR SUCH PILOT SURVEYS FOR THESE ALLEGEDLY PILOT
PROJECTS BECAUSE UP TO THIS TIME IT HAD ASSUMED THE
NONAPPLICABILITY OF THE DAVIS-BACON ACT. THE DOD SHOULD SAY TO THE
DEPARTMENT OF LABOR, WE ARE GOING TO TAKE PROPOSALS FOR THIS AND
THAT PROJECT HERE OR THERE ON A PILOT TEST BASIS;
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PLEASE PREPARE A WAGE DETERMINATION FOR THE PREVAILING WAGE []
RATES FOR THIS KIND OF HOUSING IN THIS PLACE.
IN VIEW OF THE NATIONAL POLICY STILL EXPRESSED IN THE
DAVIS-BACON ACT FOR CONSTRUCTION WHICH STARTS OUT TO BE FOR FEDERAL
USE AND FOR FEDERAL PUBLIC BUILDINGS, THE BOARD CONCLUDES THAT THE
CONGRESS DID NOT INTEND ANYTHING LESS THAN THE WAGE AND HOUR
DIVISION TO DO ITS JOB FULLY WITH RESPECT TO THESE "PILOT"
PROJECTS. THE DAVIS-BACON ACT IS NOT ADMINISTERED IN IVORY TOWERS
OR LEGAL THINK TANKS, BUT ON INQUIRIES INTO WHAT GOES ON AT PROJECT
SITES IN THE APPROPRIATE LOCALITY. THE BOARD BELIEVES THIS IS WHAT
CONGRESS INTENDED IN TERMS OF "COST EFFECTIVENESS" WHEN IT
ENCOURAGED THE MILITARY TO USE PRIVATE DEVELOPERS TO BUILD PUBLIC
USE MILITARY HOUSING FOR THE DOD. ALL THAT THE CONGRESS INTENDED
WAS THAT THE GOVERNMENT COME UP WITH THE APPROPRIATE DAVIS-BACON
RATES FOR THIS PARTICULAR PROJECT IN A PARTICULAR LOCALITY AND NOT
A WRONG, HYPOTHETICAL ONE.[5]
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[6] THE BOARD CONCLUDES THEREFORE THAT THE DAVIS-BACON ACT
APPLIES TO THESE PROJECTS AND HEREBY REVERSES THE DECISION REACHED
BY THE DEPUTY ADMINISTRATOR AND DIRECTS THE DEPUTY ADMINISTRATOR TO
ISSUE AN APPROPRIATE WAGE DETERMINATION TO APPLY TO THESE
PROJECT[S].
BY ORDER OF THE
WAGE APPEALS BOARD
CRAIG BULGER,
EXECUTIVE SECRETARY
WAGE APPEALS BOARD [6]
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