VOLKMANN RAILROAD BUILDERS, WAB No. 94-10 (WAB Aug. 22, 1994)
CCASE:
VOLKMANN RAILROAD BUILDERS
DDATE:
19940822
TTEXT:
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[1] WAGE APPEALS BOARD
UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, D. C.
In the Matter of:
VOLKMANN RAILROAD BUILDERS WAB CASE NO. 94-10
With respect to Contract No.
DACA45-92-C-0152, for a railway
maintenance project at Fort McCoy,
Monroe County, Wisconsin
BEFORE: David A. O'Brien, Chair
Ruth E. Peters, Member
Karl J. Sandstrom, Member
DATED: August 22, 1994
DECISION OF THE WAGE APPEALS BOARD
This matter is before the Wage Appeals Board on the petition
of William Larson, an employee on a railway maintenance project
at Fort McCoy, Monroe County, Wisconsin (Contract No.
DACA45-92-C-0152), for review of an April 20, 1994 ruling by the
Administrator of the Wage and Hour Division. The Administrator
granted the conformance request of Volkmann Railroad Builders
("Volkmann") for the addition of railroad track laborer and
railroad equipment operator classifications to Wage Determination
No. WI91-19. For the reasons stated below the petition for
review filed by Larson, a Volkmann employee, is denied and the
ruling of the Administrator is affirmed.[1]
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[2] I. BACKGROUND
Volkmann is the contractor on a railway maintenance project
(Contract No. DACA45-92-C-0152) at Fort McCoy, Monroe County,
Wisconsin. The wage determination applicable to that contract is
Wage Determination No. WI91-19. By letter dated April 13, 1993
to the contracting agency (the U.S. Army Corps of Engineers),
Volkmann requested the addition of a railroad equipment operator
classification, at the wage rate of $14.71 per hour plus 6 paid
holidays, to the applicable wage determination. Volkmann also
requested the addition of a railroad track laborer classification
at the wage rate of $11.66 per hour plus 6 paid holidays.
By letter dated April 30, 1993 to the Administrator, the
contracting agency recommended that the railroad equipment
operator classification be approved in part and denied in part,
depending upon the type of equipment to be used by employees.
The contracting agency recommended that the railroad track
laborer classification be disapproved.
By letter dated October 29, 1993 from Alan L. Moss, Director
of Wage and Hour's Division of Wage Determinations, the railroad
equipment operator classification was approved at the proposed
wage rate. Moss stated, however, that the requested railroad
track laborer classification could not be approved "because the
work to be performed by this classification may be performed by a
classification already included in the wage decision." The
contracting agency relayed the Wage and Hour ruling to Volkmann
by letter dated December 10, 1993.
Volkmann requested reconsideration of Wage and Hour's
decision, and the Administrator responded to that request by
letter dated April 20, 1994. The Administrator stated that the
request for the addition of a railroad track laborer
classification initially had been denied "on the basis that the
work to be performed by the proposed classification is performed
by the laborer classification already included in the [wage
determination]." She added that pursuant to Fry Brothers Corp.,
WAB Case No. 76-06 (June 14, 1977) ("Fry Brothers"), the
appropriate classification for Davis-Bacon work is the
classification utilized by firms whose wage rates were determined
to be prevailing and were incorporated in the applicable wage
determination.
In this case, the Administrator stated, the rates listed in
the wage determination reflected collectively bargained wage
rates. Therefore, she stated, Wage and Hour examined union
practice to determine which crafts performed the work in
question. The Administrator stated that neither the
International Union of Operating Engineers, Local Union No. 139
("IUOE Local 139") nor the Laborers International Union of North
America, Local Union No. 140 ("Laborers Local 140"), "which have
jurisdiction in this area," were able to provide data [2]
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[3] to demonstrate that their members performed railroad maintenance in
the area prior to award of the contract. Therefore, we must change our
initial determination." The Administrator approved the addition of the
railroad track laborer classification at the requested wage rate. She
further specified that the railroad equipment operator classification
which was approved on October 29, 1993 "is applicable to all the power
equipment operator classifications used strictly for railroad track
rehabilitation. Any other work performed by power equipment operators
on this project, must be paid in accordance with the power equipment
operator classification and rates listed in the [wage determination]."
II. DISCUSSION
The DOL regulations that govern Davis-Bacon conformance
procedures provide, at 29 C.F.R. 5.5(a)(1)(ii)(A), that "[t]he
contracting officer shall require that any class of laborers or
mechanics which is not listed in the wage determination and which
is to be employed under the contract shall be classified in
conformance with the wage determination." Furthermore, Section
5.5(a)(1)(ii)(A) provides that an additional classification and
wage rate is to be approved only when three criteria have been
met:
(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.
Upon review, the Board concludes that the Administrator
properly granted the conformance request, because all three
criteria have been met in this case. The first criterion to be
met is that the work to be done by the proposed classification is
not performed by the classification listed in the applicable wage
determination. As the Administrator noted in her ruling in this
case, where -- as here -- the applicable wage determination
reflects collectively bargained wage rates, the Board's decision
in Fry Brothers states that the practices of firms that are
signatory to the collective bargaining agreements are to be
followed on the Davis-Bacon project. Accordingly, in this case
Wage and Hour analyzed union practice to ascertain whether any
existing classifications performed the work in question. Wage
and Hour determined that neither IUOE Local 139 nor Laborers
Local 140 claimed were able to provide information that their
members performed railroad maintenance during the relevant time
period. In the absence of a showing that classifications --
laborers and power equipment operators -- [3]
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[4] listed in the wage determination did the work in question, the
Administrator properly determined that the first criterion of the
conformance test was satisfied.
Contrary to Petitioner's contention, the fact that the
Laborers Local 140 collective bargaining agreement encompassed
railroad work does not suffice to defeat Volkmann's compliance
with the first prong of the conformance test with respect to the
railroad track laborer classification. While it need not be
demonstrated that performance of the disputed work by a
classification in the wage determination is the prevailing
practice in the area, it must be demonstrated that an existing
classification actually performs the work in question. See More
Drywall, Inc., WAB Case No. 90-20 (Apr. 29, 1991); Miller
Insulation Company, Inc., WAB Case No. 94-01 (May 2, 1994), slip
op. at pp. 4-5. As to the railroad equipment operator
classification, the collectively bargained wage rates of IUOE
Local 139 are reflected in the power equipment operator
classification in the wage determination. That union did not
claim jurisdiction over the railroad work in question, and Wage
and Hour found no evidence that railroad work was performed by
IUOE Local 139 during the relevant rime period.
The second criterion to be met by a contractor requesting an
additional classification through the conformance process is that
there be an indication that the proposed classification is
"utilized in the area by the construction industry." The Board
concludes that Volkmann also satisfied this criterion. Evidence
submitted to Wage and Hour during the conformance process showed
that the National Railroad Construction and Maintenance
Association, Inc., and various Laborers and Operating Engineers
local unions have been parties to Rail Transportation and
Operation Agreements ("ROTA") that cover all types of railway
construction, including both new construction and track
maintenance and rehabilitation work. As noted by the
Administrator (Statement on Behalf of the Administrator
("Statement"), at p. 9), the ROTA agreements "reflect the
treatment of railway work as a component of the construction
industry." Thus, the ROTA agreements "effectively rebut[]
Petitioner's argument that the conformed classifications are
utilized by the railway industry and not the construction
industry, as required by the second conformance criterion" (Id.)
(footnote omitted).
The final criterion is that the proposed wage rates bear a
reasonable relationship to the wage rates listed in the
applicable wage determination. With respect to the railroad
track laborer classification, Petitioner contends that the
proposed wage rate for that classification lacks the requisite
reasonable relationship with the rates in the wage determination
because the proposed wage rate is lower than the rate listed for
unskilled laborers. Petitioner also disputes the wage rate for
the railroad equipment operator classification, which is lower
than the lowest wage rate listed in the applicable wage
determination for power equipment operators. However, as noted
by the Administrator (Statement, at p. 11), there is a
"recognized separate and specialized treatment of railroad repair [4]
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[5] work within the construction industry." Given these
unique circumstances, the Board is unwilling to second-guess the
Administrator's approval of the proposed wage rates for the
railroad track laborer and railroad equipment operator
classifications. Cf. Hillside Gardens, Inc., WAB Case No. 90-32
(June 26, 1991) (re approval of a proposed landscape laborers
classification with a wage rate lower than that listed for
construction laborers).
In sum, the ruling of the Administrator is affirmed.
BY ORDER OF THE BOARD:
David A. O'Brien, Chair
Ruth E. Peters, Member
Karl J. Sandstrom, Member
Gerald F. Krizan, Esq.
Executive Secretary [5]
