INTERNATIONAL ASSOCIATION OF HEAT AND FROST INSULATORS AND ASBESTOS WORKERS, LOCAL 28, WAB No. 91-19 (WAB July 30, 1991)
CCASE:
INTERNATIONAL ASSOC. OF HEAT & FORST
DDATE:
19910730
TTEXT:
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[1] WAGE APPEALS BOARD
UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, D. C.
In the Matter of:
INTERNATIONAL ASSOCIATION
OF HEAT AND FROST
INSULATORS AND ASBESTOS
WORKERS, LOCAL 28 WAB Case No. 91-19
With respect to reconsideration
of Davis-Bacon building construction
wage rate for asbestos workers in
Denver County, Colorado
BEFORE: Charles E. Shearer, Jr., Chairman
Ruth E. Peters, Member
Patrick J. O'Brien, Member
DATED: July 30, 1991
DECISION OF THE WAGE APPEALS BOARD
This case is before the Wage Appeals Board on the petition of
the International Association of Heat and Frost Insulators and
Asbestos Workers, Local 28 ("Petitioner" or "Local 28") for review
of the April 15, 1991 ruling of the Acting Administrator of the
Wage and Hour Division regarding Local 28's submission of data on
the building construction wage rate for asbestos workers in Denver
County, Colorado. For the reasons stated below, the Board denies
the petition for review. [1]
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[2]
I. BACKGROUND
The Wage and Hour Division conducted a survey of construction
wage data for building construction projects in Denver and
Jefferson Counties, Colorado during the period from May 1, 1988 to
May 1, 1989 (the 1989 survey period). Wage and Hour notified Local
28 and numerous other entities of the survey, and requested that
the entities submit construction wage payment data for the survey
period no later than the survey cutoff date of July 15, 1989. Wage
and Hour published a notice in the Federal Register on August 3,
1990, which listed, among other things, General Wage Decision No.
CO90-5 as a new general wage determination for building
construction projects in Denver County. This wage determination
was based upon the results of the 1989 survey.
Local 28 contacted Wage and Hour by letter dated August 7,
1990. Petitioner stated that the survey resulted in "extremely low
wages for mechanical insulators." Petitioner added that it was
aware of many projects for which data was not submitted, and
requested that those projects be allowed into the survey.
Petitioner also requested a delay in publication of the wage
determination for Denver County pending consideration of Local 28's
request that additional data be allowed into the survey. Local 28
sent Wage and Hour another letter dated August 20, 1990, and
attached to the letter additional data pertaining to the wage
survey for Denver County. (In its August 20 letter Petitioner
also challenged the survey results for Jefferson County;
however, Petitioner subsequently stated that it was challenging the
survey results only with respect to Denver County.) On October 8,
1990, Local 28 provided Wage and Hour with several WD-10 forms,
which listed projects completed during the 1989 survey period.
Local 28 stated in an October 24, 1990 letter that the data
provided on October 8 shows that "a significant amount of work
performed by Union Insulators was not entered into the survey
because of lack of communication to the Union Contractors."
By letter to Petitioner dated October 9, 1990, the Acting
Administrator described the procedures used in conducting the 1989
survey, as well as the survey results. The Acting Administrator
stated that survey data adequacy is gauged by the "overall usable
response rate as well as minimum employment criterion for
individual classes." He added that the overall usable response
rate must meet or exceed 25 percent. The Acting Administrator
further stated:
When the response rate is less than 50
percent, as is the case for Jefferson County
(46.9%), a wage rate for an individual job
class can be determined under established
survey criteria only when information on at
least six workers is received from three or
more contractors, none of which account for 60
percent or more of the total reported employees.
When the response rate is more than 50 [2]
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[3]
percent, as is the case for Denver County
(58.3%), a wage rate for an individual job
class can be determined under established
survey criteria only when information on at
least three workers is received from two
contractors.
The Acting Administrator added that the private construction wage
payment data for Denver County was sufficient to issue wage rates
for 15 of 16 key building construction classes, including asbestos
workers. Wage payment data for Denver and Jefferson Counties, he
stated, was 1,535 contractors for about 4,400 employees,
representing 90 crafts and employed on 798 private construction
projects which were under construction or completed during the 1989
survey period.
In response to Local 28's query regarding the non-inclusion of
data in the survey, the Acting Administrator stated that generally
data were rejected "because the relevant project had not been
started, were for a type of construction other than building, were
inconsistent and could not be clarified, or the data were not
submitted by the July 15, 1989 survey cutoff date." He added that
"[n]o survey is reopened to include data supplied after the survey
cutoff date. To do so would mean that no survey was ever truly
complete. Such data must await a new survey, assuming that the
data are still current for use at that time." The Acting
Administrator also stated that Wage and Hour had reviewed the wage
payment data recently provided by Local 28, and had determined that
the data were "not sufficient to warrant another survey of building
construction wage rates."
On April 15, 1991, the Acting Administrator issued a final
determination in response to Petitioner's request for
reconsideration of the building construction wage rate for asbestos
workers in Denver County. The Acting Administrator noted initially
that Local 28's submission of wage data occurred after the cutoff
date. Accordingly, he stated, pursuant to the procedures in the
Davis-Bacon Wage Determinations Manual of Operations ("Operations
Manual"), the wage data would not be considered in the survey. The
Acting Administrator further stated that Wage and Hour had,
nevertheless, reviewed the wage data submitted by Local 28. The
data, he concluded, "would not have changed our determination that
a negotiated wage rate did not prevail during the survey
timeframe." The Acting Administrator added that Wage and Hour did
not plan to conduct another building wage survey in Denver County
in the near future.
Local 28 filed a petition for review of the Acting
Administrator's April 15, 1991 determination on May 7, 1991.
Petitioner claimed that the wage rate in the Denver County wage
determination showed a 39% decrease from the previous
determination, and that this wage rate "is not representative of
the [3]
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[4] wages paid for performing work under our jurisdiction."
Local 28 requested a reconsideration of the wage determination.
Subsequently, Wage and Hour reversed its decision not to
schedule a new survey. By letter dated May 21, 1991, the Director
of the Division of Wage Determinations explained that Local 28's
data for the separate classes asbestos workers (removal) and
mechanic insulators were inadvertently compared with the combined
survey data for both classes. The Director reiterated that Local
28's data were submitted after the survey cutoff date and,
accordingly, could not be used in determining the wages for the
asbestos workers (removal) and mechanic insulator classes.
However, he added, "in view of the number of workers represented
and the differences between the wage rates paid those workers and
the published wage rate, a new survey limited to asbestos workers
will be scheduled."
II. DISCUSSION
On review, the Board concludes that the decision of the Acting
Administrator should be affirmed. Local 28 requests
reconsideration of the Denver County wage determination, stating
that "information for the survey in question has been submitted" to
the Department of Labor. However, Local 28 does not dispute the
Acting Administrator's conclusion that the information supplied
by Petitioner was submitted after the cut-off date for submission
of data for the 1989 survey. The Acting Administrator's decision
that this data would not be allowed into that survey is consistent
with the guidelines set forth in Wage and Hour's Operations Manual,
which provides that
A cut-off date should be included in the
letter requesting data to be used in the
survey. . . . [*] Data are not to be included in
the current survey if they have been submitted
past the announced cut-off date.[*] [*] (Emphasis
supplied.) [*]
The Operations Manual also provides that
If a survey is approved and thereafter new
data are provided, such information is to be
considered not as additional survey data (the
survey has been completed) but as an indication
that a new survey may be required in the future.
Thus, under these guidelines the Acting Administrator properly
declined to include in the 1989 survey information which was
submitted after the established cut-off date -- indeed,
information which was submitted after the general wage
determination for Denver County was published in the Federal [4]
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[5]
Register. The Board discerns no basis for disturbing this wage
determination for the purpose of including Local 28's data in the
underlying survey; as the Acting Administrator observed in his
October 9, 1990 letter, to permit the reopening of a survey to
include information submitted after the cutoff date "would mean
that no survey was ever truly complete."
Local 28 also states in its petition that "there should be a
new and higher wage determination made for the counties in
question" (Denver County, which the subject of Wage and Hour's
April 15 and May 21, 1991 letters, and also Jefferson, Arapahoe and
Douglas counties). /FN1/ However, subsequent to the filing of
the petition for review, Wage and Hour notified Local 28 that a new
survey limited to asbestos workers would be scheduled.
Accordingly, the issue of whether a new survey should be conducted
is now moot.
In sum, the petition for review is denied.
BY ORDER OF THE BOARD:
Charles E. Shearer, Jr., Chairman
Ruth E. Peters, Member
Patrick J. O'Brien, Member
_____________________________
Gerald F. Krizan, Esq.
Executive Secretary [5]
/FN1/ To the extent that Local 28 is suggesting that there should
be a single wage determination for these counties, the Board notes
-- as did the Acting Administrator in his October 9, 1990 letter --
that pursuant to 29 C.F.R. 1.7(a), the "area" used in making a wage
determination is generally a county, unless sufficient data are not
available to make a wage determination on that basis. [5]
