CCASE:
W.J. MENEFEE CONSTRUCTION CO.
DDATE:
19931025
TTEXT:
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[1] WAGE APPEALS BOARD
UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, D. C.
In the Matter of:
W.J. MENEFEE WAB Case No.
CONSTRUCTION CO.
Project No. DACA 45-88-C-0113
Construction of B-2 Support
Facilities
Whiteman AFB, Missouri
BEFORE: Charles E. Shearer, Jr., Chairman
Ruth E. Peters, Member
DATED: October 25, 1993
DECISION OF THE WAGE APPEALS BOARD
This case is before the Wage Appeals Board upon the request of
the Building and Construction Trades Department, AFL-CIO ("BCTD"),
for reconsideration and remand of the Board's August 11, 1993
decision. This appeal originated when W.J. Menefee Construction
Co. ("Menefee" or "Petitioner") petitioned for review of a January
10, 1990 ruling by the Acting Administrator of the Wage and Hour
Division. The Acting Administrator ruled that the prevailing wage
requirements of the Davis-Bacon Act applied to employees of a
Menefee subsidiary, MENCO Concrete Products ("MENCO"), who work at
MENCO's concrete batch plant and deliver materials from the plant
to the project site one mile away. Menefee also petitioned for
review of the Acting Administrator's March 29, 1990 decision
regarding the appropriate wage rats for concrete plant personnel
and drivers.
In our August 11, 1993 decision, the Board reversed the Acting
Administrator's ruling regarding the applicability of Davis-Bacon
requirements to the MENCO workers. The Board determined that
Davis-Bacon requirements were not applicable to the workers at the
MENCO batch plant because the plant was not part of the "site of
the work." The Board concluded that the plant was "established by
a supplier of materials for the project before opening of bids,"
and thus came within the exemption, set forth at 29 C.F.R.
5.2(l)(3), from the [1]
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[2] "site of the work" definition. The Board noted that the
Administrator had not made a dispositive interpretation of the term
"established" as used in Section 5.2(l)(3), and stated that in the
circumstances of this case it would be unreasonable to conclude that the
efforts undertaken Petitioner in the several months preceding the
opening of bids were inadequate to demonstrate that the batch plant was
"established . . . before opening of bids." Because of the resolution
of the coverage issue, the Board did not reach the issue of the
appropriateness of the wage rates.
BCTD requests that Board remand this matter to the
Administrator of the Wage and Hour Division so that the
Administrator will have the opportunity, in the first instance, to
interpret the term "established" as used in 29 C.F.R. 5.2(l)(3).
BCTD also requests that the Board reconsider its decision, to the
extent that it held that truck drivers hauling from the batch plant
to the project site are not covered by Davis-Bacon requirements,
because Petitioner is contractually bound to comply with the
rulings and interpretations that were in effect prior to the
decision in Building and Construction Trades Dep't, AFL-CIO v.
United States Dep't of Labor Wage Appeals Board, 932 F.2d 985 (D.C.
Cir. 1991) ("Midway Excavators"). In the alternative, BCTD
requests that the Board remand this matter to the Administrator for
a determination as to whether the truck drivers spent more than an
incidental amount of time at the site of the work, and thus would
be covered under the Department's interim final regulations at 29
C.F.R. 5.2(j) (57 Fed. Reg. 19,204 (May 4, 1992)).
Petitioner opposes BCTD's request for reconsideration and
remand. The Administrator agrees with BCTD that the Board should
remand this matter to the Administrator for an interpretation of
the term "established." However, the Administrator opposes BCTD's
request for reconsideration of the Board's decision on the ground
that Petitioner is contractually obligated to pay prevailing wage
rates to the truck drivers hauling from the batch plant to the
project site.
The Administrator also opposes BCTD's alternative request for
a remand for a determination of whether back wages are owed to the
truck drivers for time spent on the site of the work. For the
reasons set forth below, the request for remand and reconsideration
is denied.
With regard to the request for a remand to permit the
Administrator to issue an interpretation of the term "established,"
both BCTD and the Administrator note that in its decision the Board
stated that it was without the benefit of a dispositive
interpretation by the Administrator of that regulatory term. BCTD
and the Administrator argue that this matter should be remanded in
recognition of the role of the Administrator to decide, in the
first instance, the proper interpretation of regulatory terms.
The Board concludes that this request for a remand should be
denied. As the Board has noted in past decisions, rulemaking
functions for the Davis-Bacon [2]
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[3] and Related Acts are entrusted to the Administrator (29 C.F.R. 1.1),
and the Board recognizes that the Administrator is in the best position
to interpret those rules in the first instance. See Titan IV Mobile
Service Tower, WAB Case No. 89-14 (May 10, 1991), at p. 7. However,
nothing in the Board's decision in this matter prevents the
Administrator from issuing a dispositive interpretation of the term
"established" as that term is used in Section 5.2(l)(3). Indeed, the
Board emphasized in its decision that "it is critical that the instant
decision not be taken as effort to define that term for all time or to
specify how that term should be applied to all cases." Furthermore, it
is the Board's practice, as noted by counsel for the Administrator
(Administrator's Response to Motion for Reconsideration, at p. 4
"Response")), "in matters where the Administrator has failed to fully
address or reach all issues presented or to articulate the complete
basis for his/her ruling to remand such matters to the Administrator"
out of respect for the Administrator's role in the administrative
process. See Aleutian Constructors, WAB Case No. 90-11 (Apr. 1, 1991),
at p. 4. In this case, however, Wage and Hour proceeded with issuing a
ruling -- which formed the basis for withholding of monies from
Petitioner under 12 contracts -- in the absence of a dispositive
interpretation of the term "established," even though the case presented
a legitimate factual question as to whether the MENCO batch plant was
"established . . . before opening of bids." Thus, even if the Board
were to remand this matter for formulation of an interpretation of the
term "established,'' the appropriateness of applying that interpretation
in this case would seem questionable. Accordingly, the request for
remand of this matter to the Administrator is denied. The Board wishes
to emphasize once again, however, that nothing in the Board's
disposition of this particular case in any way prevents the
Administrator from issuing an interpretation of the regulatory term
"established." We are persuaded by the arguments of the Administrator
that the Board decline to reconsider its decision in this matter on the
basis of BCTD's contractual obligation theory, and that the Board should
deny the request for remand for a determination of back wages owed to
truck drivers for time spent on the site of the work. Regarding the
contractual obligation theory, the Administrator states (Response, at p.
7) that if the Board adheres to its decision that the MENCO batch plant
is not part of the "site of the work," the Administrator will exercise
her enforcement discretion to not seek back wages for hauling activities
between the batch plant and the actual construction sites. As to the
second point, the Administrator states (Id. at p. 8) that this
pre-Midway Excavators matter arose as a request by a contract agency for
a coverage ruling pursuant to 29 C.F.R. 5.13. The Administrator notes
(Id.) that Wage and Hour has conducted no investigation into
Petitioner's payment practices and, therefore, has not considered
whether the truck drivers are entitled to any back wages for time spent
directly upon the site of the work. Furthermore, the Administrator
states (Id.), whether back wages are owed to truck drivers for time
actually spent on the site of the work and "whether an enforcement
action to obtain such back [3]
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[4] wages would be practically feasible in this case are determinations
reserved to the Administrator's enforcement discretion." Accordingly,
the Administrator states, the Board should deny BCTD's alternative
request for remand. In two recent cases /FN1/ the Board denied similar
requests for reconsideration, stating that the Board was disinclined to
second-guess the Administrator's determination not to pursue
enforcement. In keeping with that case precedent, the Board denies the
request for reconsideration and BCTD's alternative request for remand in
this matter.
BY ORDER OF THE BOARD:
Charles E. Shearer, Jr., Chairman
Ruth E. Peters, Member
Gerald F. Krizan, Esq.
Executive Secretary [4]
/FN1/ Decisions on reconsideration in Ames Construction, Inc., WAB
Case No. 91-02, and Winzeler Excavating Company, WAB Case No. 88-10
(Feb. 23, 1993). [4]
