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<![CDATA[
CCASE:
A-MAC SALES AND BUILDERS COMPANY, INC.
DDATE:
19910627
TTEXT:
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[1] WAGE APPEALS BOARD
UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, D. C.
In the Matter of:
A-MAC SALES AND BUILDERS WAB Case No. 90-37
COMPANY, INC.
With respect to Wage Determination
No. MI88-2 and Renovation of Building
410, Selfridge Air National Guard Base,
Macomb County, Michigan
BEFORE: Charles E. Shearer, Jr., Chairman
Ruth E. Peters, Member
Patrick J. O'Brien, Member
DATED: June 27, 1991
DECISION OF THE WAGE APPEALS BOARD
This matter reappears before the Board on the Motion for
Reconsideration filed by the Office of the Solicitor on behalf of
the Acting Administrator of the Wage and Hour Division. The motion
asks the Board to reverse its prior decision that the renovation of
a base officers' quarters was "residential" construction for the
purpose of prevailing wage rate payment, rather than the more
highly paid "building" construction. In support of its motion the
Solicitor argues that the Board failed to give proper deference to
the decision of the Administrator, misapplied the criteria of
All-Agency Memorandum 130 ("AAM 130"), and failed to address the
terms of the local collective bargaining agreement. For the
reasons contained herein, the Board finds none of these arguments
persuasive and therefore denies the instant motion.
The Solicitor claims that there is no legal authority for the
proposition that the "Wage and Hour Division has the burden of
demonstrating the correctness of its decision based upon the
overall nature of the project" (i.e., the work to be [1]
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[2] performed as well as the end use of the construction) "in the
context of prevailing area practices"; and that the Board should
give deference to the Administrator's decision if the
Administrator's application of the law to the facts is reasonable.
The Board reiterates its prior ruling that the Administrator
bears the burden of demonstrating the correctness of its decision
based upon the overall nature of the project. Deference to the
Administrator's decision would be the normal posture of the Board
if the application of the law to the facts is reasonable. See,
Titan IV Mobile Missile Tower, WAB Case No. 89-14 (May 10, 1991).
However, as stated in Aleutian Constructors, WAB Case No. 90-11
(April 1, 1991), that decision must be articulated properly and be
the product of procedural fairness; furthermore, as was apparent in
Dutch Hotel, WAB Case No. 90-29 (March 22, 1991), deference became
difficult when the Administrator did not forward an administrative
record sufficient to demonstrate awareness of the facts of the
matter under review.
The Board cannot give blind deference to a determination of
the Administrator justified by a post hoc rationale. That would
tend to create an environment wherein administrative convenience
takes a higher prio[r]ity than the rights of the affected parties.
The Board disagrees with the Solicitor's position that "The
[Davis-Bacon] Act was enacted for the benefit of employees, not
contractors" (Motion for Reconsideration, pp. 4-5, fn. 3). The
legislative histories of the original Act and to the 1935
amendments thereto, as well as then-Secretary of Labor Arthur
Goldberg's statements before Congress in 1962, state other
purposes. While employees were certainly primary beneficiaries of
the legislation, Congress certainly intended to support local
contractors paying prevailing wages. Secretary Goldberg stated:
It was done to achieve those simple results. No. 1, to
see to it that the Federal Government did not support
substandard wage conditions; No. 2, to support local
contractors who were paying prevailing wages; and, No. 3,
to see to it that local citizens could work at those
projects at prevailing wages.
Hearings Before the Spec. Subcomm. of the Comm. on Education and
Labor on H.R. 9656 and 9657, 87th Cong. 2d Sess. (1962), p.8. See
also, Universities Research Ass'n v. Coutu, 450 U.S. 754, 771-784
(1981).
The Solicitor's contention that the Board misinterprets AAM
130 completely misses the point of the ruling in Dutch Hotel,
supra: proper categorization of a project depends on the overall
nature of the project, as well [2]
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[3] as on the nature of the work to be performed. By its own terms,
any of the individual items listed in AAM 130 are only illustrative
in nature. Should Wage and Hour prefer "bright line" criteria, it
should engage in the type of rulemaking process contemplated by
the Administrative Procedure Act.
The Board does not agree with the Solicitor's
characterization of the local collective bargaining agreement as
dispositive. Upon reexamining that contract, the Board observes
more ambiguities than mentioned in its original opinion in this
matter. We direct the Solicitor's office to the distinctions made
in the contract between different types of work, especially with
regard to concrete and steel versus wood.
Accordingly, the motion for reconsideration is denied.
BY ORDER OF THE BOARD:
Charles E. Shearer, Jr., Chairman
Ruth E. Peters, Member
Patrick J. O'Brien, Member
Charles E. Shearer, Jr.
Chairman [3]
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