U. S. DEPARTMENT OF LABOR Office of Solicitor Washington 25 MAY 28 1950 MEMORANDUM TO: Agencies Administering Statutes Referred to La 29 CFR, Subtitle A, Part 5. FROM: Stuart Rothman Solicitor of Labor SUBJECT: Remarks at: Joint Enforcement & Apprenticeship Conference, February 1, 1956, U. S. Department of Labor. In the interest of promoting a better understanding of the Department's Apprenticeship Program and its relation to Enforcement re- sponsibilities under the Davis-Bacon and related Acts and the Secretary of Labors Regulations, Part 5, promulgated pursuant to Reorganization Plan 14 of 1950, a joint Apprenticeship & Enforcement Conference was held in this Department. Approximately 50 representatives of the various Contract- ing Agencies attended. I am enclosing copies of the remarks made at that session as well as an official ruling issued to the Bureau of Apprenticeship in this regard. These should prove helpful La standardizing the Agencies' enforcement positions in determining bona fide apprenticeship employment under Regulations, Part 5. Enclosures Joint Enforcement and Apprenticeship Conference Wednesday, Feb. 1, 1956 Rm. 5223 II. Enforcement A. Remarks B. Coverage The Agenda anticipates that Mr. Babe' will cover under Subparagraph I the historical approach to the Davis-Bacon and related Acts, the subsequent passage of the Reorganization Act of 1949, and Reorganization Plan No. 14 of 1950. Subparagraph II respecting Regulations, Part 5, presents the meat of the conference from the enforcement viewpoint and should include a recita- tion and explanation of Sections 5.2(c), 5(a), and 5.6(e) as they affect apprentices. Transcripts of those Regulations are set forth as an attachment to the Memorandum from Mr. Babe' to Mr. Beaubien entitled "Apprenticeship Registration Under the Davis-Bacon and Related Acts and Regulations, Part 5," dated January 19, 1958, C. Apprenticeship Registration Because of the historical background respecting apprentice employ- .ment on Federal or Federally assisted construction, and the strict language of the Davis-Bacon and related Acts concerning the employment of laborers and mechanics, Regulations, Part 5, established permissible employment consistent with the standards outlined therein which are in protection of the Federal and State Apprenticeship programs, Because of the time delays between indenture execution, Committee approval, and State Council or Agency Registration, a .standard and consistent enforcement approach to permissible apprentice employ- ment must be achieved in line with the true purposes of Apprenticeship Training. Individual Agencies have requested specific interpretations concern- Lag effective Apprenticeship Registration for permissible employment pursuant to Regulations, Part 5.11. Their efforts to coordinate their enforcement effort and to correlate the respective problems of Davis-Bacon Enforcement with Bureau of Apprenticeship Training standards brought about situations as to which a system of tolerances was allowed to prevent unjust harshness in vigorous enforce- ment. These tolerances intended to allow in some instances credit for Apprenticeship Training received prior to the date of actual registration of the individual Apprenticeship indenture. So that a standardized approach any be established to effectuate the purposes of the Apprenticeship Training program while simultaneously complying with the various Federal labor laws applicable to construction contracts and Regulations, Part 5, the Solicitor's Office has taken the position that since these Regulations require a bone ride apprentice to be employed in a - 2 - program registered with the State Council or the Bureau of Apprenticeship, and since an element of each program is the individual Apprenticeship Registration or indenture, we will consider a worker to be a bona fide apprentice from the date of indenture execution provided the Crafts Committee approval date and the State Agency or Council Registration date are within thirty days of indenture execution. If the execution date is not within this period, then the Committee's approval date will be accepted, provided the Committee's date is within thirty days of the State Agencies' or Council Registration date. In the event these periods are not observed, the State Agency or Council Registra- tion date will control. In instances where State Registration requires individual indenture registration or approval as a prerequisite to the commencement of bona fide Apprenticeship Training, we will consider such approval or registration date by the State official or his duly designated representative as complete and final evidence of the commencement of bona fide Apprenticeship Training. In instances where individual registration is made directly with a Bureau of Apprenticeship representative who has authority to execute the in- denture, and State Agency approval is not required, the Bureau of Apprenticeship date will be accepted as controlling. 1. Evidence of Bona Fide Apprenticeship To effect proper enforcement of these labor standards statutes, it is necessary in the first instance to acquire acceptable evidence of bona- fide apprenticeship registration. No particular or set method for acquiring it is prescribed. One contracting agency may require its payroll clerk or Labor Review Section to advise the contractor who uses the apprentices to submit evidence of Apprenticeship Registration when the apprentice first appears on a submitted payroll. This evidence can take the form of a copy of the indenture. On the other hand, in certain situations a registration certificate or card may be available in the hands of the apprentice. Interview of the particular apprentice can also establish sufficiently to the trained investigator the bona , fides and whether or not the apprentice may be employed. It is suggested that the most practical way would be for the contracting officer's representative to inquire from the local Bureau of Apprenticeship representative in the areas, of the indenture execution date, Committee approval date, and Registration date of the particular apprentice, as well as his period level of training, anticipated completion date and previous work credits allowed. This latter system would serve to finalize the need for acquiring competent evidence of bona fide Apprenticeship Training. Interpretation of the evidence available to determine the presence or absence of violations would be purely a routine matter based upon such evidence. - 3 - 2. Contracting Officers' Responsibilities and Duties As you know, the primary enforcement responsibilities of these labor standards rest in the contracting agency. The contracting officer is a representative of that Agency and his representatives in turn are the people most closely connected with the actual conduct of the construction contract. In determining bona fide apprenticeship employment by any given contractor or subcontractor, the contracting officer or his representative has the same responsibilities as he has with respect to determining the proper craft rate to be paid to employees for craft work. The safeguards against misclassification, falsification and wage underpayments follow along the same lines as those necessary to effectuate proper apprenticeship employment from an enforcement viewpoint. Apprentices present an additional question as to the extent to which a contracting officer should go in determining bona fide employment. If the contracting officers were to acquire their information from the Federal Bureau of Apprenticeship or the representative State Agency, in a practical sense, they could save time and fulfill their responsibilities and duties under the Act and Regulations, and achieve compliance with the Federal requirements. The duties of the contracting officer do not extend beyond the establishment of pa fide registration. In other words, the contracting officer has no re- sponsibility to determine whether or not the apprentice is receiving the training called for by the program under which he is registered. For example, one of the basic requirements of Apprenticeship Training is the element of re- lated instruction. Related instruction is a requirement and function of the Bureau of Apprenticeship and the duty to oversee compliance with those essential requirements is on the labor-management apprenticeship groups. Laborers Helpers Apprentices Laborers are generally defined as pick and shovel men. Helpers assist craftsmen in certain trades by passing tools to them and assisting the journeyman in the unskilled manual phases of his work. Apprentices in relation to Laborers and Helpers consistent with their period level of training, perform all "bull" or unskilled work, passing tools, etc.; right on thru to the work of the finished mechanic under the super- vision of the journeyman. Certain crafts traditionally have used laborers or helpers for journeyman training before apprenticeship training programs were started. Even today in some geographic areas, some organized crafts such as the boilermakers and tile setters continue to use the sub-classification for journeyman training. The asbestos workers have traditionally utilized "improvers" for this purpose. -4- From an enforcement viewpoint, however, the problem is resolved by the Secretary's prevailing wage decision. For example, in geographic areas where laborers or helpers are recognized sub-classifications to crafts, they will be included in the applicable wage decision and become part of the contract. Where apprentices' wages are determined, helpers may not be x employed in lieu thereof. The apprentice is recognized as the individual who performs the less skilled craft work of his training period level. The use of helpers at subminimum wage rates where not pre- determined by the Secretary of Labor or allowed by reclassification conformable to the Secretary's decision in accordance with Regulations, Part 5, or by a system of approved additional classifications is normally a violation of the pay requirements of the Acts. E. Disproportionate Employment Regulations, Part 5.6(e) provides for the recognition of dis- proportionate employment of laborers, helpers and apprentices. Its purpose is to acquaint enforcement officers with some of the more obvious signs of compliance evasion. Since the problems affecting all three elements are similar ' and the apprentice's situation more complex, I shall restrict my treatment here to apprenticeship disproportion. As you know, apprentices are indentured for training purposes to committees, which consist of joint labor-management arrangements in organized areas pursuant to collective bargaining, or to individual contractors through collective bargaining, or in the case of non-union contractors through the Bureau of Apprenticeship. These training programs allocate a number of appren- tices to be employed and trained in relation to the number of mechanics with whom they may be working. In Committee type programs the number allowed is La direct relation to the number of mechanics within the organized craft. These numbers are set by and controlled by labor and management. In individual Contractor employment cases pursuant to collective bargaining these amounts are also set by management and labor. In individual non-union programs, the Federal Bureau of Apprenticeship passes on and approves the number any contractor on an individual basis can reasonably justify to train. In any event, a number of apprentices is always allowed in relation to the number of journeymen. For our purposes we can call these allowed training numbers quotas. - 5 - In apprentice training these numbers can be used for whatever purpose training dictates. By this we mean that in the event specific work could be of value to all apprentices at one given location or job, all apprentices allowed the contractor within quotas might be sent by that con- tractor to the particular job. However, should that ease contractor attempt the same practice on a Federal-covered job, he would run smack into the disproportionate employ- ment concept of Regulations, Part 5,6(e). What we mean is this: the allowable quotas for training by their very nature imply that the ratio of apprentices to journeymen allowed represents the amount that can be adequately trained. So too then must that ratio be observed on Federal jobs. In most instances that ratio will be observed by the collective bargaining process on non-covered jobs as won. But in non-covered cases whether union or non-union we have no enforcement authority. Abuses allowed to prevail there should not permeate our Government construction contracts. It is intended to prevent the non-payment of mechanics wages for mechanics' work performed. Disproportionate employment of apprentices or employees labeled apprentices would defeat the purposes of prevailing rate legislation, based on a craft classification system required by the Davis-Bacon Act. The case of the unregistered apprentice creates no problem. It clearly presents a violation. The case of the bona fide registered apprentice places on contracting officers -the additional responsibility of determining the proper employment ratio. On its face a submitted payroll which reflects apprentice employ-. ment beyond a 1 to 1 ratio, o.e., 4 apprentices to 1 journeyman is patently a violation of the Acts and Regulations, Part 5. Common sense dictates that one journeyman cannot properly train 4 apprentices on modern standards. However, when a ratio of 1 bona fide apprentice to 1 journeyman or 1 bona fide apprentice to 2 journeymen is presented and evidence of bona fide registration is obtained, there remains the additional duty to determine the proper allowable ratio. In collective bargaining situations by Committee in- denture, the ratio can be determined by inquiry of the Committee or from the collective bargaining agreement, In individual contractors' programs, determine the appropriate craft ratio by considering the total employment of apprentices allowed La re- lation to the number of journeymen employed. These ratios can then be applied on a project basis. Computations of Wage Underpayments In the interest of simplification of reporting labor standards violations, with the able assistance of the Wage-Hour and Public Contracts Divisions of this Department we developed Solicitor's Forms SOL 162, 165 mad 164. - 6 - We are considering the submission of these, when perfected, to the various agencies as guides in their work. To date we have not had sufficient return on these to determine their real workability and prospects. Nonetheless, in working with computations it should be helpful to have these before you for determining underpayment computations as they affect apprentices. I believe we should do this by examples following a brief explana- tion of some of the problems. First there is always the problem of determining the applicable apprentice rate. This can be dons prospectively from a copy of the indenture or from the information obtainable from the Bureau of Apprenticeship. Normally the work is performed in semiannual stages and by simple arithmetic the period train- ing level can be found. The second problem presented is one of disproportionate employment of bona fide registered apprentices. If a 1 to 3 ratio is approved for a program, then at any given day when more than 1 apprentice to 3 journeymen are employed on covered contracts, dis- proportionate employment within the meaning of Section 5.6(e) of Regulations,