J. E. MC AMIS, INC., WAB No. 92-18 (WAB Dec. 30, 1992)
CCASE:
J. E. MC AMIS, INC.
DDATE:
19921230
TTEXT:
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[1] WAGE APPEALS BOARD
UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, D. C.
In the Matter of:
J. E. MC AMIS, INC. WAB Case No. 92-18
With respect to U.S. Army Corps
of Engineers Contract No.
DACW85-89-C-0002, St. George, Alaska
BEFORE: Charles E. Shearer, Jr., Chairman
Ruth E. Peters, Member
DATED: December 30, 1992
DECISION OF THE WAGE APPEALS BOARD
This matter is before the Wage Appeals Board on the petition
of J. E. McAmis, Inc., ("Petitioner" or "McAmis"), seeking review
of September 24 and October 9, 1992 letters issued by the District
Director, Office of the Regional Administrator, Wage and Hour
Division. In pertinent part, the District Director declined to
render an opinion concerning the correctness of a classification
determination (and related contract withholding) made by the U. S.
Army Corps of Engineers ("Corps") during McAmis' performance of the
captioned federal construction contract which was subject to the
prevailing wage labor standards provisions of the Davis-Bacon Act
(40 U.S.C. [sec] 276a et seq.). Petitioner argues that the letters
are reviewable by this Board; the Acting Administrator has filed a
motion to dismiss for lack of ripeness. For the reasons stated
below, the motion is granted and the petition for review is
dismissed without prejudice. [1]
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[2] I. BACKGROUND
On December 29, 1988, McAmis contracted with the Corps of
Engineers for construction of a harbor at St. George, Alaska.
During construction, a dispute arose between McAmis and the
contracting agency concerning the proper classification and wage
rate for Heavy Duty Mechanic (Equipment Operator). On January 23,
1989, Petitioner submitted a request for a conformed classification
to the Corps' contracting officer. There is no record that the
contracting agency acted on this request and Petitioner's
contention that the Corps has failed to settle this matter since
1989 is undisputed.
On September 2, 1992, McAmis directed a letter to the Wage and
Hour Division's regional office in Seattle, Washington. McAmis
requested that office to provide a determination as to the
appropriate classification and wage rate to be used for heavy duty
mechanics and, further, for an "accounting" of contract funds
withheld by the Corps as a result of the classification dispute.
The District Director responded on September 24, 1992, informing
McAmis that its inquiry would better be directed to the Corps due
to the fact that the Department of Labor was not involved in the
mechanic classification dispute or withholding action /FN1/. The
regional office also indicated that based on the information
provided by McAmis, it "would not take exception to the Corps'
determination" concerning the mechanics /FN2/, based on the
classifications already contained in the applicable contract wage
determination.
McAmis replied to the regional office on September 28, 1992.
In closing that letter, Petitioner demanded a final and appealable
ruling. The District Director again stated that the proper
authority for resolution of the dispute was the Corps, due to the
fact that no enforcement action had been taken by the Wage and Hour
Division with respect to the issue of mechanics. [2]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
/FN1/ Wage and Hour had apparently investigated the same contract
and reported alleged violations concerning construction camp
cleaners and cooks, classifications which were the subject of
litigation before the Board in Aleutian Constructors, WAB Case No.
90-11 (Apr. 1, 1991) and WAB Case No. 91-22 (Sept. 27, 1991).
Contract funds in excess of $55,000 were originally withheld from
McAmis by the Corps at Wage and Hour's direction for alleged camp
worker violations, but these funds were released following the
decision of the United States District Court in Aleutian
Constructors v. United States, No. C91-1470 (W.D. Wa. June 30,
1992).
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
/FN2/ This regional office enforcement position was apparently
based on the fact that the applicable wage determination -- based
on collectively bargained classifications and wages for power
equipment operators -- listed "mechanics" under the classification
of "power equipment operators, group 1" and "light duty mechanics"
under "power equipment operators, group 3." The Corps disagreed
with McAmis' position that the lack of a specific "heavy duty"
mechanic's classification supported payment of employees as "power
equipment operators, group 2," which contains no listing for
mechanics. [2]
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[3] II. DISCUSSION
Although it is clear that Wage and Hour's regional office has
issued a written document declining to enter the classification
dispute between the Corps and Petitioner, the record demonstrates
that the Acting Administrator has not been requested to review and
rule on the question presented to us for consideration. The
Department of Labor's regulations establishing our jurisdiction are
found at 29 C.F.R. 7.9, providing in pertinent part:
Any party or aggrieved person shall have a right to file
a petition for review with the Board . . . from any final
decision in any agency action under part 1, 3, or 5 of
this subtitle. [Emphasis supplied.]
As a matter of administrative procedure, rulings and opinions under
Davis-Bacon are sought from and issued by the Administrator, prior
to our review. See 29 C.F.R. 5.11(c)(3). The Wage and Hour
Division should decide issues of this nature prior to a Board
proceeding. Francioni Construction Co., Inc., WAB Case No. 92-10
(Aug. 14, 1992); Ray Petty d/b/a Professional Drywall Services, WAB
Case No. 91-32 (Oct. 25, 1991); see also Lloyd T. Danielsen, et
al., BSCA Case Nos. 92-15, -16, -17 (Sept. 30, 1992). There is no
final decision to review here and Petitioner has, furthermore,
failed to allege any concrete harm that would justify Board
intervention at this time.
In her motion to dismiss, the Acting Administrator suggests
that this matter is presently pending review in a regional Corps
office. Further, Wage and Hour is requesting that a copy of the
Corps' final action be sent to the Administrator's office for
review. Presumably, after this review, "the Administrator shall
either refer the matter to the Office of Administrative Law Judges
for hearing where relevant facts are in dispute, or issue a ruling
directly appealable to the Board where it appears no relevant facts
are in dispute." Acting Administrator's Motion to Dismiss, p. 5.
Petitioner's opposition to the motion to dismiss does not
persuade us that this matter is ripe for review. It is asserted --
without basis -- that the September 24, 1992 regional Wage and Hour
letter is a final and appealable Administrator's ruling. However,
that communication was clearly not issued as a ruling by the
Administrator. Advisory enforcement correspondence such as
presented here is not appealable to this Board nor, generally would
it be binding on the Administrator. See, Werzalit of America,
Inc., WAB Case No. 85-19 (Apr. 7, 1986).
This request for review is premature. Accordingly, the
petition is dismissed without prejudice.
BY ORDER OF THE BOARD:
Charles E. Shearer, Jr., Chairman
Ruth E. Peters, Member [3]
Gerald F. Krizan, Esq.
Executive Secretary
