AMES CONSTRUCTION, INC., WAB Case No. 91-02 (WAB Feb. 23, 1993) (decision on reconsideration)
[1] WAGE APPEALS BOARD
UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, D. C.
In the Matter of:
AMES CONSTRUCTION, INC., WAB Case No. 91-02
EDWARD KRAEMER & SONS, INC.,
A Joint Venture, Prime Contractor
and
DONOVAN CONTRACTING OF
ST. CLOUD, INC.,
L & G REHBEIN, INC.,
PRESCOTT LEASING, INC.,
R & R LEASING, INC.,
Subcontractors
&
WINZELER EXCAVATING COMPANY WAB Case No. 88-10
Bryan, Ohio
BEFORE:/FN1/ Charles E. Shearer, Jr., Chairman
Ruth E. Peters, Member
DATED: February 23, 1993
DECISIONS ON RECONSIDERATION
These matters are before the Wage Appeals Board on the
December 14, 1992 motion filed by the Building and Construction
Trades Department, AFL-CIO ("BCTD"), seeking reconsideration of the
Wage Appeals Board's decisions issued October 30, 1992.
Oppositions to the motion for reconsideration have been filed by
the Acting Administrator, Wage and Hour Division, Ames
Construction, Inc. and Edward Kraemer & Sons, Inc., a joint venture
("Ames"); Donovan Contracting of St. Cloud, Inc. ("Donovan"), L &
D Trucking, Inc. ("L & D"), Winzeler Excavating, Inc., and the
Associated General Contractors of America, Inc. ("AGC"). For the
reasons stated below, the motion for reconsideration is denied. [1]
/FN1/ Member Patrick J. O'Brien participated in the oral argument
of these matters but did not participate in the original decisions
or this reconsideration. [1]
[2] The basis for BCTD's motion for reconsideration is the
proposition that the Department of Labor regulation at 29 C.F.R.
5.2(j) was a valid rule at the time the subject federally assisted
contracts were entered and that, therefore, the contractors were
contractually obligated -- pursuant to the general labor standards
provision at 29 C.F.R. 5.5(a)(8) /FN2/ -- to comply with Section
5.2(j) regardless of the decision of the U.S. Court of Appeals for
the District of Columbia Circuit in Building and Construction
Trades Department, AFL-CIO v. United States Dep't of Labor, Wage
Appeals Board ("Midway Excavators"), 932 F.2d 985 (D.C. Cir. May
17, 1991). The BCTD cites the district court decision in Ball,
Ball and Brosamer, Inc., Civil Action No. 91-3266 (CRR)(Aug. 18,
1992), appeal docketed Oct. 9, 1992 (D.C. Cir.). There, the
district court held, inter alia, that there had been a binding
contractual obligation to comply with prevailing wage standards
where a question of coverage had arisen under the regulation at 29
C.F.R. 5.2(l) regarding off-site facilities located in reasonable
proximity to and dedicated exclusively (or nearly so) to an
otherwise covered site where a project would remain after
completion of construction.
All other parties and interested persons have opposed the
motion for reconsideration. The Acting Administrator defends the
decision not to seek back wages for time spent hauling from
commercial pit sites to the actual construction site as a
non-reviewable discretionary enforcement decision. Even if
reviewable, the "non-enforcement" decision is further defended as
not arbitrary, capricious or an abuse of discretion. Ames and the
AGC principally argue that we are without jurisdiction to decide
contractual issues where there is no statutory Davis- Bacon or
Related Act coverage. Winzeler further proposes that we are
without jurisdiction to entertain the motion for reconsideration
given that it has filed a complaint in court seeking review of our
October 30 decision and order in its case. L & D and Donovan raise
several issues, but principally rely on the argument that the
Department of Labor is bound -- as announced in the interim final
rule -- to apply the Midway Excavators holding in all cases pending
on the effective date of the interim rule at Section 5.2(j).
In our October 30 Ames decision (slip op. at p. 8), we noted
the Acting Administrator's decision to release more than $326,000
of contract funds previously withheld pursuant to a Section 5.2(j)
enforcement action:
It appears to the Board that the decision to release the
withheld funds was essentially an exercise of the Acting
Administrator's enforcement discretion, and the Board is
disinclined to disturb the Acting Administrator's
enforcement determinations. [2]
/FN2/ "Compliance with Davis Bacon and Related Act requirements.
All rulings and interpretations of the Davis-Bacon and Related Acts
contained in 29 C.F.R. parts 1,3, and 5 are herein incorporated by
reference in [federal or federally assisted construction contracts
containing the provision]." [2]
[3] The Acting Administrator, as noted, now affirmatively states
that enforcement discretion was the basis for the decision to
release the funds and, moreover, to apply Court of Appeals' Midway
Excavators holding and the new Section 5.2(j) to all cases pending
on May 4, 1992, the publication date for the interim final rule.
We have carefully reviewed the respective positions of the
BCTD and the oppositions filed by all parties and interested
persons and conclude that the decision of the Acting Administrator
was -- as affirmatively stated by the Acting Administrator -- an
exercise of enforcement discretion. We have declined to review
otherwise reasonable non-enforcement decisions in the past and
again decline to second-guess the Acting Administrator in these two
requests for reconsideration. See, Gust K. Newberg Construction
Co., WAB Case No. 91-35 (Mar. 31, 1992); Builders, Contractors and
Employees Retirement Trust and Pension Plan, WAB Case No. 90-28
(Mar. 1, 1991). On this record, we rule that the Acting
Administrator's discretionary enforcement is not reviewable by the
Board.
Furthermore, even if reviewable, we would conclude that the
discretionary enforcement exercised in this case was not arbitrary,
capricious or otherwise not in accordance with law within the
meaning of the Administrative Procedure Act. We see the Acting
Administrator's decision to apply the interim Section 5.2(j)
regulation to all cases pending on May 4, 1992 as consistent with
the law of the case in the Court of Appeals' Midway Excavators
decision, where it was held that the previous "site of the work"
regulation at Section 5.2(j) was inconsistent with the terms of
coverage under the Davis-Bacon Act. The Acting Administrator's
distinction between material transport cases -- such as these --
and other "site of the work" matters arising under the otherwise
valid regulation at 29 C.F.R. 5.2(l) /FN3/ is reasonable and we
conclude that there is no showing on this record that the action is
arbitrary, capricious or otherwise not in accordance with law.
For the forgoing reasons, the motion for reconsideration of
our October 30, 1992 decisions in the captioned matters are denied.
BY ORDER OF THE BOARD:
Charles E. Shearer, Jr., Chairman
Ruth E. Peters, Member
Gerald F. Krizan, Esq.
Executive Secretary [3]
/FN3/ Compare, Ball, Ball and Brosamer, supra. [3]
