Excell supports its arguments with excerpts from the contract specifications from
the Acute Care Center project, as well as a letter from the manufacturer of the aluminum sheeting
product indicating that the material normally is installed by sheetmetal mechanics.
In addition, Excell notes that the Administrator ultimately added a
sheetmetal mechanic classification to the wage determination in 1995 in response to Baker
Roofing's conformance request. Excell observes that if it had learned about the Baker Roofing
conformance approval, it would not have pursued its separate request for the classification,
which Excell apparently views as identical.
[Page 7]
While Excell's arguments are interesting, they miss the mark. In order to
add an additional job classification and wage rate through the conformance process, the proposed
classification must fall squarely within each element of the three-part conformance test,
supra . With specific regard to the first element of the test ("The work to be
performed by the classification is not performed by a classification in the wage
determination"), the Board has held that
in a conformance case, which always occurs after a
contract has been awarded, the Administrator is not required to
prove that the work of the proposed conformed classification
already is performed on a prevailing basis by a classification in the
wage determination. All that is required is a showing that one of
the classifications in the wage determination performs the work of
the proposed conformed classification, even if that practice does
not prevail in the area. [Pizzagalli ], slip op. at 8. Nothing
more is needed: "Board precedent makes clear that in
applying the first criterion [of the regulations] it need not be
established that the classification listed in the wage determination
is the prevailing practice, but only that the work in question is
performed in that area by that classification of worker."
In the Matter of Iron Workers II , WAB Case No. 90-26,
March 20, 1992, citing TRL Systems , WAB Case No. 86-
08 (Aug. 7, 1986), Warren Oliver Company, WAB Case
No. 84-08 Nov. 20, 1984; see also J.A. Languet Construction
Co. , WAB Dec. April 27, 1995 (request for conformance of
job classification "Concrete Worker-Form" denied
because work was already performed by Carpenter classification
in wage determination).
U.S. Fire Protection, Inc. , ARB Case Nos. 99-008, 039, slip op. at 5-6 (Aug. 30,
1999). In other words, when evaluating a proposed job classification under the expedited
conformance process, the Administrator is not required to reevaluate prevailing practices in the
area.
In this case, the Administrator correctly noted that the ironworker
classification in the wage determination was based on rates found in a collective bargaining
agreement. Pursuant to the Wage Appeals Board's decision in Fry Brothers Corp , WAB
Case No. 76-06 (June 14, 1977), the Administrator appropriately considered the jurisdictional
scope of the ironworker job classification in the collective bargaining agreement underlying the
wage rate. In his investigation into the conformance request, the Administrator contacted both
the Iron Workers and Sheet Metal Workers unions and determined that the particular tasks
contemplated under the Excell conformance request fell within the scope of duties that would
be performed by ironworkers under the collective bargaining agreement. This conclusion was
supported by communications from both unions, as well as evidence that ironworkers had
performed similar work previously in the locality (including correspondence from employers that
hired iron workers on similar projects).
[Page 8]
Based on the materials in the Administrative Record, we are satisfied that
the Administrator's decision denying Excell's conformance request comports with the
requirements of the regulation and governing legal standards. The record plainly includes
sufficient evidence to conclude that the workers in the ironworker classification perform the
disputed work; thus, because there is a classification within the wage determination that can
perform these tasks, it would be inappropriate to add another classification through the
conformance process.
We also reject Excell's claim that it should have been allowed to use the
sheetmetal mechanic classification that was granted in response to the Baker Roofing
conformance request. The scope of work that was identified by Baker Roofing was very
specific: installation of gutters, roof flashing, downspouts, facia, coping and all other related
materials. There is no evidence in the record suggesting that these tasks are performed by
ironworkers or any other classification found in the wage determination; thus a conformance was
appropriate within the specific scope of the Baker Roofing request. However, as discussed
above, this cannot be said of the tasks required under Excell's subcontract. In this case, the two
requests are separate and distinct, and Excell is not entitled to rely on the sheetmetal mechanic
classification and wage rate granted to Baker Roofing.
2. Whether the conformance should be granted because of the
long period of time that Excell's request was pending before the Administrator.
In addition to challenging the merits of the Administrator's final decision,
Excell argues that it has been prejudiced by the extended period of time in which its request was
pending before the Administrator between 1996 and 1999, and that this Board therefore should
grant Excell's petition.
Nowhere in the record or in the Administrator's statement to this Board
is there any explanation for the lengthy delay by the Wage and Hour Division. In fact, it appears
that the Division was moved to act only after receiving an inquiry from a Member of Congress.
We do not condone such delay, and recognize Excell's frustration in this regard; but sympathy
alone does not provide a justification for granting a conformance request that plainly does not
meet the regulatory standard.
[Page 9]
The Board considered a similar issue in another Davis-Bacon conformance
case, and concluded that the contractor (The Law Company) had not provided a sufficient
justification for overturning the Administrator's decision based on delay:
The goal of the Davis-Bacon Act is to insure that federal
construction dollars do not undermine locally prevailing wage
rates; the intended beneficiaries of the Act are the laborers and
mechanics working on federal and federally-assisted construction
contracts. U.S. v. Binghamton Construction Co. , 347 U.S.
171 (1954). If Law Company's Petition for Review were to be
granted, the employees working on the Project would be denied a
portion of their lawful wages a result that is contrary to the
statute itself. Moreover, Law Company would reap a windfall
when compared to the other contractors who submitted bids on the
VA hospital project, who presumably based their bids on the wage
rates in the published wage determination.
* * *
We do not condone the fact that nearly 22 months elapsed in this
conformance dispute without initial action on the Wage and Hour
Division's part. However, substantial delays in the conformance
process have been affirmed in the past. For instance, a delay of
nearly 19 months was found not to be fatal to the Wage and Hour
Division's conformance ruling in Iron Workers II , WAB
Case No. 90-26, Mar. 20, 1992. We share the sentiments
expressed in Iron Workers II when, affirming the
Administrator, the Wage Appeals Board noted that "[b]y so
doing, the Board does not express its approval of the routine
issuance of conformance rulings beyond the 30-day time period but
instead simply recognizes that the Department's own regulations
do not preclude the Wage and Hour Division from acting outside
that 30-day period." Id. at p. 11.
The Law Company , ARB Case No. 98-107, slip op. at 15-16 (Sept. 30, 1999).
As in The Law Company , we cannot conclude from the record
before us that Excell has been prejudiced by the delay in this case. Although the Wage and Hour
Division's actions have delayed the ultimate resolution of this dispute (i.e. , a final
agency decision rejecting the conformance request, and the associated payment of back wages
to the affected employees), the net financial impact on Excell essentially is unchanged.
Arguably, the greater harm has been experienced by Excell's employees on the project, who have
been denied their full wages during this period. Accordingly, we find that Excell has not
demonstrated prejudice that would warrant reversing the Administrator's decision on this ground.
[Page 10]
CONCLUSION
For the foregoing reasons, the decision of the Administrator is
AFFIRMED , and the Petition for Review is DENIED .
SO ORDERED.
PAUL GREENBERG
Chair
CYNTHIA L. ATTWOOD
Member
[ENDNOTES]
1 This appeal has been assigned to a panel
of two Board members, as authorized by Secretary's Order 2-96. 61 Fed. Reg. 19,978 §5 (May
3, 1996).
2 In addition, Baker requested that
a "roofer" classification be added through the conformance process, because wage
determination WD VA91005, Mod. 3, did not include this job category.
3 Excell does not provide any
specific information about these other federal projects, such as their locations, the nature of the
construction element assembled, whether the sheetmetal mechanic classification was included in the
original wage determination or added through a conformance, the relative wage rates of the sheetmetal
mechanic and ironworker classifications, etc.