J. A. LANGUET CONSTRUCTION CO., WAB No. 94-18 (WAB April 27, 1995)
[1] WAGE APPEALS BOARD
UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, D.C.
In the Matter of:
J. A. LANGUET WAB Case No. 94-18
CONSTRUCTION COMPANY
With respect to conformed classifications
under Wage Determination No. 91-ME-0095
applicable to Contract No. DAHA17-93-0007
for construction an Armed Forces Reserve Center,
Bangor, Penobscot County, Maine
BEFORE: Karl J. Sandstrom, Presiding Member
James C. Riley, Member
Joyce D. Miller, Alternate Member
DATED: April 27, 1995
DECISION OF THE WAGE APPEALS BOARD
This matter is before the Wage Appeals Board on the petition
of J. A. Languet Construction Company (Languet or Petitioner),
for review of the April 13, 1994 final ruling issued by the
Administrator, Wage and Hour Division. The Administrator denied
Languet's request for conformance of a "Concrete Worker (form)"
classification on the ground that the disputed work -- setting up
and dismantling concrete forms -- was already performed by
another classification listed in the contract wage determination:
carpenter. For the reasons set forth below, the
Administrator's ruling is affirmed.[1]
[2] I. BACKGROUND
On September 9, 1991, the State of Maine Bureau of Public
Improvements notified Languet -- a general construction
contractor -- that it had been awarded a contract for
construction of the Armed Forces Reserve Center in Bangor
(Penobscot County), Maine. By October 9, 1991, Languet was
notified of a possible change which would transfer responsibility
for the Reserve Center project from Maine to the federal
government. The construction project was in fact transferred to
federal responsibility and on November 22, 1991 Languet rebid for
the contract. On January 9, 1992, the United States Departments
of the Army and the Air Force awarded Languet Contract No.
DAHA17-92-C-0007 for the Reserve Center's construction. The
contract was subject to and contained the labor standards
provisions applicable to the Davis-Bacon Act (40 U.S.C. 276a et
seq.; the "Act") and Wage Decision (WD) No. 91-ME-0095.
On November 15, 1991 -- prior to its rebidding or federal
award of the contract -- Languet requested authorization of
additional classifications and rates for use on the Reserve
Center project. Administrative Record (AR) Tab O. At that time,
Languet proposed two classifications: Cement/Concrete Finisher
(at $6.50 hourly, no fringe benefits) and Cement/Concrete Helper
(at $6.00 hourly, no fringe benefits). No employee concurrence
was provided; rather, the request stated that employees were
"[n]ot known at this time." Id. No contracting officer
concurrence is listed on the conformance request. Id.
The Wage and Hour Division's Director, Division of Wage
Determinations (Director) responded to Languet's conformance
request on January 15, 1992. AR Tab P./FN1/ The Cement/Concrete
Finisher classification was approved for conformance at an hourly
rate of $6.50 (with no fringe benefits), as proposed by Languet.
The Director, however, denied approval of the Cement/Concrete
Helper classification, stating:
Pursuant to longstanding practice, helper
classifications and other subclassifications can be
added to a wage decision where the use of helpers is an
established prevailing practice, the duties are clearly
defined and distinct from those of the journeyman
classification and from laborers, and where the term
"helper" is not synonymous with a trainee in an
informal training program. [Id.][2]
[3] Construction on the Reserve Center proceeded and, in June
1992, Wage and Hour commenced an investigation of Languet's labor
standards compliance under the contract. Among other
classification practices questioned by Wage and Hour's
investigator was the fact that Languet had classified as
Cement/Concrete Finishers those employees who performed the
duties of setting up and dismantling concrete forms; mixing,
carrying, and pouring concrete; and concrete finishing. In order
to resolve the question of whether these employees were
classified as required by the contract wage determination, Wage
and Hour conducted a "limited area practice" survey of similar
construction in Penobscot County during the previous year. The
object of the investigation was to determine whether any
classifications listed in the wage determination performed the
disputed duties.
WD 91-ME-0095 contained a mix of both union and open shop
rates. Based on Wage and Hour's policy guidelines, the
investigator sought area practice information from both open shop
contractors and concerned unions. AR Tab R. Responses were
received from four open shop contractors. Three of these
respondents stated they performed a total of 14 similar (building
construction) projects during the relevant time; one open shop
respondent constructed no projects during the period. Wage and
Hour received a joint submission from Laborers International
Union of North America, Local 1377 (Laborers) and United
Brotherhood of Carpenters and Joiners of America, Local 621
(Carpenters). This information indicated a total of 170 building
construction projects performed by 14 union contractors during
the period.
The open shop information also revealed that two of the
three non-union respondents employed carpenters to set up
concrete forms; one of these three survey respondents used
carpenters and laborers to do the set up work. All three
non-union firms reported that the work of dismantling forms was
performed by laborers. The joint Laborers'/Carpenters'
submission reported that carpenters set up and dismantled
concrete forms on the 170 union-firm building projects.
Based on the survey results, Wage and Hour's investigator
concluded that the carpenter classification listed in WD
91-ME-0095 set up and dismantled concrete forms in Penobscot
County. Back wages were computed for employees performing the
setting up and dismantling of concrete forms, as well as for
other alleged violations not concerned in this conformance
matter. AR Tab Q. By September 1992 -- pursuant to Wage and
Hour's request -- the contracting officer had withheld $120,000
from Languet's payment requisition. AR Tab S. In January 1993,
Wage and Hour requested an additional contract withholding of
$46,421.
On April 22, 1993 -- seven months after the first contract
withholding -- Languet requested the contracting officer to
submit a conformance request for "Concrete Worker (form)." AR
Tab B. In support of this request, Languet provided a copy of WD
ME930007 (for Hancock, Knox, Waldo, and Washington Counties,
Maine), which contained the classification "Concrete Workers
(form)." Id. The [3][4] hourly wage rates listed for this
classification were an $8.89 basic rate plus $.89 fringe
benefits. The contracting officer prepared a conformance request
at these rates. AR Tab C. Languet changed the wage rate amount
to $6.50 before signing the conformance request form. AR Tab D.
No employee concurrence was listed; rather, as in Languet's 1991
conformance request, the request stated that employees were
"[n]ot known at this time." AR Tab C.
On June 30, 1993, the contracting officer transmitted the
conformance request to Wage and Hour. The contracting officer
apparently recommended approval of the classification, but noted
that he had "disapproved the [rate] request and, therefore, the
interested parties do not agree." AR Tab A, p. 1. The
contracting officer recommended conformance of the Concrete
Worker (form) classification at the rates provided in WD
ME930007. Id.
Wage and Hour's Director replied to the request for the
Concrete Worker (form) classification on September 10, 1993. The
conformance request was denied for the following reasons:
Section 5.5(a)(1)(ii)(A) establish that one of the
criteria for the approval of additional classification
and wage rate is that the work to be performed by a
classification requested is not performed by a
classification in the wage decision. The
classification of a Concrete Worker (Form), if all that
is being performed is building of forms this work would
be performed by a classification already in the wage
decision. The appropriate classification would be a
Carpenter. [AR Tab F; citation omitted.]
On December 20, 1993, Languet requested reconsideration of
this denial. AR Tab G. In this submission (AR Tab G, p. 3),
Languet specified four job duties for the requested conformance:
1. Assemble prefabricated steel concrete forms with
attached plywood faces.
2. Place concrete in the forms to the proper grade
level.
3. Remove the forms from the hardened concrete and
stack them.
4. Minor cleaning and patching of the concrete
surfaces.
Languet also argued in support its request for
reconsideration by stating that the "description of the work to
be performed within the classification Cement/Concrete Finisher
was based upon the description of that classification as set
forth in the National Council of Compensation Insurance." Based
on this [4][5] "Concrete Construction NOC," Languet took the
position that "there is no actual difference between the
classification Cement/Concrete Finisher, approved by the
Administrator on January 15, 1992 and the requested Concrete
Worker (Form)." Id. at p. 4. Languet further characterized this
question of proper classifications as a "jurisdictional dispute"
between the Carpenters and Laborers. Finally, Languet stated
that the 1992 area practice survey provided "no substantiation"
for Wage and Hour's position that the disputed work was performed
by carpenters. Id. at p. 5.
Wage and Hour's Administrator issued her final determination
on the Concrete Worker (form) question on April 13, 1994. The
Administrator reiterated the regulatory requirements at 29 C.F.R.
5.5(a)(1)(ii)(A) and stated (AR Tab H at 1):
In this regard, we must rely on local area practice.
The area practice survey, conducted by a Wage and Hour
investigator of our Bangor Field Office, indicates that
the work at issue for the concrete worker (form)
clearly is within the scope of duties performed by the
carpenter classification already in the contract WD.
According to the survey, carpenters set up and
dismantle concrete forms. We have already approved an
additional classification for cement/concrete finisher
at $6.50 which presumably covers the pouring and
finishing of concrete. Consequently, we must reaffirm
the position set forth in our September 10, 1993
letter.
The Administrator also informed Languet of its right to
appeal her ruling to the Board within 30 days of April 13, 1994.
Id. at p. 2.
Languet mailed a petition for review of this determination
to the Board on or about April 29, 1994. The original petition
was never received by the Board and -- after resubmission -- this
matter was docketed by the Board on November 10, 1994 without
opposition from the Administrator.
The parties have filed a statement in support of their
position and Petitioner has filed a statement in reply to the
Administrator's brief. The Building and Construction Trades
Department, AFL-CIO has participated in this matter as an
interested person within the meaning of the Board's regulations
and has filed a statement in support of the Administrator's final
ruling, as well as advancing the additional argument that
Languet's conformance request should be deemed untimely, given
that it was filed with Wage and Hour after commencement of the
underlying enforcement investigation.[5]
[6] II. DISCUSSION
The regulations governing conformance set out three criteria
at 29 C.F.R. 5.5(a)(1)(ii)(A) (emphasis added) which must be
satisfied in order to approve conformed classifications and
rates:
(1) The work to be performed by the classification
requested is not performed by a classification in the
wage determination; and
(2) The classification is utilized in the area by the
construction industry; and
(3) The proposed wage rate, including any bona fide
fringe benefits, bears a reasonable relationship to the
wage rates contained in the wage determination.
In considering Petitioner's request for conformed
classifications, the Administrator did not reach the second two
regulatory criteria and ruled against Languet's conformance
request based on the first factor, only. As noted, the
Administrator concluded that Wage and Hour's area practice survey
found the disputed work to be performed by the carpenter
classification listed in WD 91-ME-0095. Based on our review of
the parties' Statements and the administrative record, we
conclude that the Administrator did not exceed her discretion and
affirm her determination that the disputed Concrete Worker (form)
classification cannot be conformed to the contract wage
determination.
Petitioner agrees that this conformance dispute is properly
resolved under the first criteria of the regulation; that the
relevant area of consideration is Penobscot County; and that our
precedent does not require conformed classifications or denials
to be based on prevailing practice. Petitioner's Reply to
Administrator's Statement (Reply) at pp. 2-3. Languet's
principal argument is that Wage and Hour's limited area practice
survey is flawed and does not support the Administrator's denial
of the Concrete Worker (form) classification. The Board does not
agree.
In the first place, Petitioner argues, the Administrator
should have conducted a survey to determine the single
classification in Penobscot County which performed all four
discrete tasks here under consideration, i.e. setting up forms,
pouring concrete, removing forms, and finishing concrete. Wage
and Hour, on the other hand, requested survey responses as to
which classification performed each of these four tasks,
separately. We conclude that the survey was conducted properly
under Wage and Hour's policy guidelines and that the survey was
in accordance with Board precedent.
The Board has long endorsed maintaining the integrity of the
work classifications which appear in wage determinations. This
is the principle that governed the structuring of the area
practice conducted in this case. As the Board stated in the
leading case of Fry Brothers Corporation, WAB Case No. 76-06
(June 14, 1997), slip op. at p. 17:
When the Department of Labor determines that the
prevailing wage for a particular craft derives from
experience under negotiated arrangements, the Labor
Department has to see to it that the wage
determinations carry along with them as fairly and
fully as may be practicable, the classifications of
work according to job content upon which the wage rates
are based. If a construction contractor who is not
bound by the classifications of work at which the
majority of employees in the area are working is free
to classify or reclassify, grade or subgrade
traditional craft work as he wishes, such a contractor
can, with respect to wage rates, take almost any job
away from the group of contractors and the employees
who work for them who have established the locality
wage standard. There will be little left to the
Davis-Bacon Act.
Petitioner would first combine all four duties and then
search for a classification. But this methodology ignores Fry
Brothers and the conformance process, by presuming that no
classification in the wage determination performs any of the
disputed duties. Such an approach is contrary to the rule
announced in Fry Brothers, and consistently followed by this
Board in the ensuing years.
Petitioner argues that the set up and dismantling of forms
is not "work traditionally considered within the Carpenter
classification." Petition for Review, p. 2. However, this
argument is neither strictly relevant to consideration of this
matter under the conformance regulations, nor is it true. In the
first place, it is clear from the face of the Reserve Center wage
determination that carpenters in Penobscot County have been
determined to perform other work which could be considered by
open shop contractors as "nontraditional." In this regard, the
classification in WD 91-ME-0095 is listed as "carpenters
(including drywall hanging)." AR Tab K.
Performance of "nontraditional" duties is common practice
throughout the nation under construction industry union
agreements and this practice is followed under federal
construction contracts where union rates have been determined to
prevail. An even starker example of the types of non-traditional
work which can be performed by carpenters is found in WD
ME930007. In that document, two nonunion carpenters'
classifications were determined to be prevailing. One -- listed
at a higher rate -- is "Carpenter: acoustical ceiling
installation only)" and the second (at a lower rate) is
"Carpenter: all other work (excluding drywall hanging,
acoustical ceiling installation and concrete form work)." AR Tab
B. Separate classifications for drywall hangers and Concrete
Workers (form) are listed in WD ME930007. Id.
Also without merit is Languet's contention that Concrete
Worker (form) should be conformed for the four disputed duties,
based on terminology and assignment of duties listed in a 1993
National Council of Compensation Insurance (NCCI) publication
(Scopes of Basic Manual Classifications), "normally used to
allocate costs of workers' compensation premiums." Reply Brief
at p. 4. But, this publication concerning national standards in
the insurance industry is not relevant to either the conformance
regulation or questions of area practice, which the Act requires
be determined, generally, on a county-by-county basis.
The NCCI manual broadly groups disparate job duties, job
classifications, and even categories of construction together for
its purposes, which appear designed to group worker compensation
risks based on mere exposure to certain working conditions. For
instance, although NCCI classification "Concrete Construction
NOC" (category 5213) includes all commercial construction
"foundations or the making, setting up or taking down of forms,
scaffolds, false work or concrete distributing apparatus," it
also includes wrecking and demolition of concrete structures
(including sales and clerical personnel at the wrecking site).
AR Tab V. This code also applies to placing steel reinforcing
bar (rebar); cleaning and renovating building exteriors;
guniting and waterproofing with pressure spray guns; grouting;
and work on "monolithic concrete private residence construction."
Id. Also, this NCCI category does not appear to include any
reference to pouring concrete or cement or to finishing either
product. There is, therefore, no merit to Languet's contention
that it classified it Concrete Worker (form) employees consistent
with the NCCI standards. In any event, as noted, the NCCI code
is not pertinent to area practice.
Petitioner's reliance on the fact that WD ME930007 --
applicable to four other counties -- contains a Concrete Workers
(form) classification is also misplaced. The Board has adopted
the position that a party seeking conformed classifications and
rates "may not rely on a wage determination granted to another
party regardless of the similarity of the work in question."
Inland Waters Pollution Control, Inc., WAB Case No. 94-12 (Sep.
30, 1994), slip op. at pp. 7-8. In fact, the Board has ruled
that a contractor could not prospectively rely on Wage and Hour's
prior approval of conformed classifications and rates for
application to a contract performed at the same location. E&M
Sales, Inc., WAB Case No. 91-17 (Oct. 4, 1991). In short, the
holdings in these cases demonstrate that there is no element of
equitable reliance available under the conformance procedures.
Adequate remedies for challenging deficiencies in wage
determinations are available, but must be requested prior to the
award of a contract. It is well established that the conformance
procedure cannot be used as a substitute for the obligation to
timely challenge the correctness of wage determinations. Jordan
& Nobles Construction Co. & W R. Pierce & Associates, WAB Case
No. 81-18 (Aug. 19, 1983); Rite Landscape Construction Co., WAB
Case No. 83-03 (Oct. 18, 1983). In this case, we note that the
record demonstrates more than adequate time to file a challenge
to the wage determination -- Languet first requested conformed
classifications in this case prior to rebidding for or award of
the federal contract.
As the Board recently stated in the context of a conformance
request arising under the McNamara-O'Hara Service Contract Act of
1965, as amended (41 U.S.C. 351 et seq.):
. . . . The Administrator may resort to the
conformance process to relieve a contractor of the
undue hardship that would result from application of a
classification in the wage determination that could not
be reasonably anticipated at the time of bidding.
The Administrator's recourse to this process is
discretionary and a contractor may not rely on this
process to relieve himself of his obligation under the
regulations to seek review and reconsideration of a
wage determination prior to opening of bids. In
fairness to all bidders and to assure the government
receives the full benefits of the competitive bidding
process, the Administrator should exercise this
discretion sparingly.
Kord's Metro Services, BSCA Case No. 94-06 (Aug. 24, 1994), slip
op. at pp. 2-3. We have also followed this reasoning in matters
coming before this Board. Bryan Electrical Construction Company,
WAB Case No. 94-16 (Dec. 30, 1994). Granting a conformed
classification under these facts would be the equivalent of
permitting an untimely challenge to the WD 91-ME-0095.
Languet emphasizes that the contracting officer -- in a June
30, 1993 letter to Wage and Hour -- recommends approval of the
Concrete Worker (Form) request, albeit at $8.89 plus $.89 fringe
benefits hourly. However, the contracting officer's
recommendation in the conformance process is not binding on Wage
and Hour and may be rejected in the Administrator's reasonable
discretion. Petitioner states that the contracting officer's
recommendation was "consistent with Languet's position that the
work performed was not otherwise included in the Wage
Determination." Languet offers no support for this contention.
Languet also argues that Wage and Hour's survey was
deficient in that the agency failed to comply with its "Manual of
Operations." Relevant to this dispute, the Manual specifies the
following procedure to collect area practice information:
If the applicable wage determination is a mixed
schedule (e.g., union electricians and open shop
laborers), or it is based on average rates of both
union and non-union workers, it is necessary to contact
both union and open shop contractors who do the work in
question and/or their associates.
Petitioner argues that Wage and Hour failed to contact the union
contractors, thereby rendering the survey defective. As noted,
Wage and Hour received union contractor information from the
Carpenters and Laborers. Petitioner's argument in this regard
ignores the fact that the foregoing section of the Wage and Hour
Manual of Operations allows for an additional survey source: the
"associates" of both union and open shop contractors. Among the
"associates" of union contractors would clearly be the unions
themselves and there was, therefore, no defect in seeking project
information from the Carpenters' and Laborers' Locals in this
case. The joint union responses are adequately identified as
"listing the contractors and job name as evidence of the trade
jurisdiction of carpenters and laborers performing work on
building construction classified projects in Penobscot County,
Maine during 1991." AR Tab R (letter dated December 2, 1992).
Finally, Languet disputes the relevance of all data
collected with respect to the union contractors' project
information. Petitioner states (Reply at p. 6; emphasis in
original) that:
Careful examination of the 170 so-called "closed
[union] shop" projects discloses that none of them are
identified as a "building construction project[]" They
are almost exclusively small non-construction jobs
within larger projects.
Petitioner's characterization of most of these projects as
"non-construction jobs" is incorrect. It is true that many of
the listed projects can be characterized as repair of portions of
building projects or as the installation of machinery. However,
for purposes of the Act, construction alteration and repair is
accorded similar treatment. 40 U.S.C. 276a. Moreover,
installation of machinery has long been considered work covered
by the Act's provisions. See All Agency Memoranda Nos. 130 and
131.
Most importantly, however, there are numerous projects which
appear to be significant and as such would clearly be building
construction projects. Languet has raised no objection -- other
than that the source was the Carpenters'/Laborers' submission --
to much of the information provided. Thus, for contractor H.P.
Cummings, the unions listed these six projects: MRI,
Ca[u]terization Lab, Open Surgery Room and Loading Dock (Eastern
Maine Medical Center); Pharmacy (St. Joseph's Hospital);
Psychiatric and Drug Dependency Unit (Acadia Hospital). AR Tab
R. Among other projects listed for Consolidated Constructors and
Builders, Inc. is one listing foundation work at the Maine Air
National Guard building. Id. Absent any showing that these
projects were not building construction work and taken together
with the remaining union contractor projects, Petitioner has
failed to demonstrate to the Board that Wage and Hour's survey
was flawed.
We decline to reach the Building and Construction Trades
Department's contention that Languet's conformance request should
be denied on the ground that it was first sought after
commencement of Wage and Hour's investigation. This argument is
not necessarily without merit, especially where a conformance
request appears designed to circumvent the investigatory process.
However, the regulations do not prohibit post-enforcement
conformance proceedings. In the ordinary circumstance the
Administrator is acting within her discretion under the
regulations to entertain a request for conformed classifications
at any stage in the contracting and construction process.
For the foregoing reasons, the Administrator's final ruling
of April 13, 1994 is affirmed.
BY ORDER OF THE BOARD:
Karl J. Sandstrom, Presiding Member
James C. Riley, Member
Joyce D. Miller, Alternate Member
Gerald F. Krizan, Esq.
Executive Secretary[11]
/FN1/ The Director's January 15 response also concerned an
additional 15 requests for conformed classifications, although
the administrative record before the Board reflects only
Languet's November 15, 1991 request for Cement/Concrete Finisher
and Cement/Concrete Helper. AR Tab O. These fifteen
classifications and rates were approved in the Director's
response.
