"Trainees in an informal training program" issue Our
review of the record in connection with the "informal training program" issue similarly
leads us to conclude that the Administrator is correct. In its brief to the Board, Miami notes that the
Wage and Hour Division recognized the elevator helper classification on Davis-Bacon jobs for many
years without expressing concern that the classification failed to meet the third element of the 3-part
test. Moreover, Miami notes that "[m]any helpers never seek any training to become
journeymen and have no desire to go through the steps necessary to enter that classification."
PR Miami at 6. Similarly, Mid-American observes that ". . . a helper does not have to
complete a training program as a condition of continued employment. A helper can become a
'permanent' helper." Reply Mid-Am at 8. Mid-American also is critical of the Administrator's
observation in the final decision letters that the IUEC and the management side of the elevator
construction industry once considered registering an apprenticeship program, but declined to do so;
Mid-American argues that the decision not to register an apprenticeship program does not by itself
imply that helpers are, perforce, informal trainees. PR Mid-Am at 3; AR Miami Tab A; AR Mid-Am
Tab A.
We agree with Mid-American that the elevator industry's decision not to
register an apprenticeship program does not per se mean that helpers are participants in an
[Page 25]
informal training program. We could not reach such a conclusion, because the record is silent on
the content such an apprenticeship program would include and what relationship, if any, an
apprenticeship program would have to the elevator helper classification. However, the Administrator
is correct that the Standard Agreement describes repeatedly the training function that is associated
with the elevator helper classification, which is the entry-level classification in the industry. It is
apparent that new workers ordinarily are hired as helpers, are provided with training and experience,
and at some point are allowed to rise to journeyman level by taking an examination. And Miami's
assertion that some trainees never rise to the journeyman mechanic level serves to support the very
distinction that the Administrator makes i.e., that the helpers essentially are participating
in an informal training program because one of the hallmarks of the registered apprenticeship and
trainee classifications that are approved for Davis-Bacon purposes is that the workers who participate
in these organized programs of instruction ultimately complete the programs and move onward to
higher-level classifications; the apprentice and trainee positions are not terminal classification in
themselves. See, e.g., 29 C.F.R. §29.5. Although the record on this question is slim,
we find that it too supports the Administrator's final decisions that the elevator helper classification
does not meet the requirements of the third element of the Administrator's 3-part test.
- B. Whether the Administrator's conclusion that the elevator
constructor helpers could not be classified and paid as
"skilled laborers" is consistent with the statute and
regulations and reasonable.
Citing language found in All Agency Memorandum No. 174, Miami Elevator
argues that if the Administrator does not approve the conformance request, then the proper remedy
is to reclassify its elevator constructor helpers as "skilled laborers." PR Miami at 7; AR
Miami Tab D at unnumbered p. 4. Miami relies upon the following text from the Wage and Hour
Division's 1993 directive to contracting agencies:
-
The Department will continue to take action to ensure that workers
erroneously classified as helpers are reclassified as journey-level
workers or laborers in accordance with the work performed (those
cases, for example, where employees perform work solely of a skilled
nature, where individuals do not work under the supervision and
direction of a journey-level classification, or where workers perform
duties beyond the duties performed by helpers pursuant to the practice
in the area).
AAM No. 174 at 3.
Miami misconstrues the language and intent of the All Agency Memorandum.
The laborer classification is not a default option that automatically is available to construction
[Page 26]
contractors in the event that a helper classification is not recognized. Just as the various mechanic
classifications each have well-defined collections of tasks that in the aggregate define "the
trade" under the Act and the regulations, so too does the laborer craft have its own distinctive
duties in each locality. Based on Miami's tabulation of the tasks performed by elevator constructor
helpers (AR Miami Tab D), it is clear that the helpers are engaged actively in performing the work
of the elevator construction trade and, absent their participation in a registered apprentice or trainee
program, must be paid as elevator mechanics pursuant to 29 C.F.R. §5.5(a)(4). The
Administrator therefore is correct in finding that the elevator helpers are not to be classified as
"skilled laborers."
- C. Whether the Administrator's decision not to recognize the
elevator constructor helper classification is consistent with the
Davis-Bacon Act, when the use of elevator constructor helpers is
a locally prevailing practice and the Administrator's decision
arguably represents a change in longstanding practice when
issuing DBA wage determinations.
In addition to its fact-based argument that elevator helpers perform duties that
are distinct from those of mechanics, both Petitioners assert more general legal arguments
challenging the Administrator's decision. Mid-American focuses on the undisputed fact that using
helpers in the elevator industry is prevailing local practice, arguing that the Administrator's decision
results in classification practices that do not "hold . . . a mirror up to local prevailing wage
conditions and reflect . . . them." Reply - Mid-Am at 4, quoting Hawk View,
slip op. at 8.
Miami raises arguments tied to three Labor Department documents relating
to the recognition of helpers on Davis-Bacon jobs that it views as precedential: (1) the Wage
Appeals Board's 1986 decision in Hawk View Apartments; (2) a July 1997 conformance
decision involving elevator mechanic helper job classifications issued by the Wage and Hour
Division for a Rome Housing Authority (New York) construction project; and (3) a 1973 opinion
letter issued by the Wage and Hour Division, Opinion WH-202 (Mar. 1, 1973), available at
BNA WH Manual 99:1113.
Hawk View Apartments As today, the 1986 Hawk View
decision was issued by the WAB during a period when the 3-part helper test was the standard being
used by the Wage and Hour Division. The Hawk View dispute arose on a low-income
housing project in Reno, NV, which was subject to both the labor standards provisions of the Davis-
Bacon Act and the Nevada state prevailing wage law. The Labor Department's DBA wage schedule
included "plumber" and "sheet metal worker" classifications and wage rates
that were based on the local union rates; however, the DBA wage determination did not include
classifications and wage rates for "plumber's helpers," "irrigation plumber's
helpers" or "utility man," even though the collective bargaining agreements
[Page 27]
included these subjourneyman classifications. In contrast to the DBA wage determinations,
however, the Nevada state prevailing wage determination recognized these classifications. Both the
DBA and the Nevada wage determinations were included in the specifications applicable to the
housing project.
The prime contractor on the project and the Reno Housing Authority submitted
conformance requests to the Wage and Hour Division seeking to add the helper and utility man
classifications; the requests were denied. The Housing Agency began withholding funds from the
contractor in connection with wage underpayments to the helpers and utility men.
An appeal to the Wage Appeals Board followed, and the Board reversed the
Administrator's decision and approved the conformance of the helper classifications in a 2-member
majority opinion, joined by a separate concurrence by Member Thomas Dunn. The Board's 2-
member majority opined that under the specific facts of the Hawk View case,
-
it would not effectuate the purposes of the Act to assess a remedy as
though the basic purposes of the Davis-Bacon Act had been violated.
. . . The Board will not go on to consider whether there may have
been fine technical violations of the Department of Labor's
regulations regulations which may be out of touch with the
applicable Nevada local practice.
Hawk View, slip op. at 5. The majority was heavily swayed by the fact that the use of
plumber's helpers and utility men reflected local practice as evidenced by the Nevada state prevailing
wage determination, and that all the local bidders on the project probably would have used the same
staffing patterns. In the Board's words:
-
In this case, the majority concludes that any local area contractor
conforming to local practice as well as local negotiated agreements
who bid the instant job would not have done it any differently than
the way that it was performed here.
-
One of the classical statements oft repeated with respect to the
Davis-Bacon Act is that the Act holds a mirror up to local prevailing
wage conditions and reflects them. The majority concludes that it
would not effectuate the purposes of the Act to establish a double
standard; one which pertains to local area practice established by the
State of Nevada under its Prevailing Wage Law derived wholly from
negotiations between crafts and employers in the construction
industry for private construction without Davis-Bacon Act funds, and
another set of standards that applies only to federally financed or
federally aided programs subject to the Davis-Bacon Act.
Id., slip op. at 7-8.
[Page 28]
Member Dunn reached the same result in his concurrence (i.e.,
reversing the Administrator and approving the addition of the helper rates), but through a different
analysis. In Dunn's view, it was appropriate to approve the helper and utility man wage rates simply
because the journeyman wage rates in the wage determination were based on union scale,
and the underlying collective bargaining agreements recognized the subjourneyman
classifications:
-
In this case there is no dispute that the helper and other
subjourneyman classifications requested by the petitioner reflect
locally prevailing practice in the Reno, Nevada, area. The
impediment to their approval by the Assistant Administrator was that
the scope of duties of each of the proposed classifications was not
clearly defined and distinct from the journeyman's duties. All that is
held in this case is that where the Wage and Hour Division
determines that the prevailing rate for a classification of laborer and
mechanic is equivalent to the wage rate negotiated in a collective
bargaining agreement applicable to the same classification of laborer
and mechanic in the locality, the work practices adopted in that
agreement, including recognition of helper and other subjourneyman
classifications, shall also be recognized as prevailing.
Id., concurrence of Member Dunn, at 12 (emphasis added).
In its Petition, Miami calls to the Board's attention both the majority opinion
and the concurrence in Hawk View, asserting that these opinions offer strong support for its
view that the Administrator should have recognized the elevator helper classification because such
recognition would be consistent with the "basic principles of the Act," and specifically
with Member Dunn's view that the presence of the helper classification in the collective bargaining
agreement the source of the prevailing elevator mechanic wage rate should be sufficient to merit
publication of the negotiated helper wage rate. PR Miami at 4-5.
Wage and Hour Division's Rome Housing Authority conformance action
(July 24, 1997) Miami also notes that in July 1997 (i.e., roughly during the same time
period when Miami and Mid-American were seeking to add the helper classifications through the
conformance process), the Wage and Hour Division issued a conformance decision to the Rome
(New York) Housing Authority approving the addition of an "Elevator Mechanic"
classification to a wage determination at the wage rate normally paid to the elevator constructor
helper. AR Miami Tab C. Miami asserts that the Administrator's decision denying the
conformance request for the Tampa courthouse project is a "departure from the precedent
established only last summer by the Rome, New York conformance approval." PR Miami at
6.
[Page 29]
Neither Miami nor the other parties to this proceeding offers any explanation
of the events leading up to the Rome Housing Authority conformance action. However, we note that
the Rome Housing Authority requested that both Elevator Mechanic ($22/hr., plus benefits)
and Elevator Mechanic, Helper ($15.40/hr., plus benefits) job classifications be added to the wage
determination applicable to the housing project. If the wage determination had included an elevator
mechanic classification and wage rate, there would have been no need to ask that a mechanic rate
be added through the conformance process. Thus, we infer that the original wage determination did
not include any job classification for performing elevator construction work (i.e.,
neither the elevator mechanic or the elevator helper position).
In response to the conformance request, the Wage and Hour Division declared
that a helper classification would not be approved unless it met the 3-part test, and that the requested
Elevator Mechanic, Helper classification would not be approved without a showing by the Housing
Authority that the position met all the criteria of the test. However, the Wage and Hour Division
expressed a willingness to establish the Elevator Mechanic at the lower wage rate that
had been proposed for the Helper (i.e., $15.40/hr. plus benefits). As a result, the
conformance action technically denied the addition of the Helper job classification, but
approved the conformance of the Mechanic classification at the lower wage rate normally
paid to the Helper. Miami argues that the Administrator's denial of its conformance request on the
Tampa project is inconsistent with the Administrator's willingness to publish an elevator
mechanic classification at an elevator helper wage rate in the Rome Housing
Authority action.
Opinion WH-202 In support of its Petition, Miami also cites Opinion
WH-202 (BNA WH Manual 99:1113), an opinion letter issued by the Assistant Wage and Hour
Administrator in 1973, which addresses the circumstances under which the Division would recognize
a helper classification under the Davis-Bacon Act. PR Miami at 5. In relevant part, the
Opinion provided the following guidance, apparently addressed to the Department of Housing and
Urban Development:
-
"Carpenter's helper" and other such subclassifications
are included in construction wage determinations . . . when the
information available indicates that a practice of using such a
classification prevails in the area. . . .
-
When information available to the Department shows the
prevailing rate for carpenters, for example, to be the same as the local
union rate, the Department will conform to union negotiated practice
insofar as any subclassification such as helper is concerned. If such
a classification is included in the negotiated agreement, the
Department will include the classification in applicable decisions.
The duties ascribed to the position by the Department will be the
same as those contemplated in the agreement.
[Page 30]
-
With the exception of a situation where negotiated rates prevail as
described in the preceding paragraph, specific statements with
universal application cannot be made regarding the proper distinction
between a "helper" and a "laborer" or the
extent to which either may use "tools of the trade." . . .
-
* * *
-
The Department will not, without a clear showing of prevailing
practice, issue or approve helper classifications when in local usage
this classification is actually an informal trainee position. [The
Davis-Bacon] Regulations . . . provide for the use of apprentices and
trainees on projects subject to Davis-Bacon requirements. Such
classifications are not, and need not be, included in the wage
determination.
Id. Miami argues its requested elevator constructor helper classification fits squarely
within the standard articulated by Opinion WH-202. In Miami's view, if the Department is to
"conform to union negotiated practice insofar as any subclassification such as helper is
concerned[,]" id., it follows that the elevator constructor helper classification should
be recognized in connection with the wage determination applicable to the Tampa project because
it is undisputed that the employment of the helper classification prevails in the locality, and the
prevailing wage rate for the elevator mechanic is based on the collectively-bargained rate.
Administrator's Reply In response to Miami's legal arguments, the
Administrator discounts the significance of the documents cited by Miami. Admin Resp - Miami
at 7-8. The Administrator characterizes the Wage Appeals Board's decision in Hawk View
as "a questionable anomaly," incorrect legally because the decision (a) was inconsistent
with the Department's Davis-Bacon regulations and (b) was based upon unusual facts. Id.
With regard to Opinion WH-202, the Administrator asserts that the document "merely repeats
the longstanding position . . . that helpers will be recognized if their use is an established prevailing
practice in the area," and declares further that "to the extent that a 25-year old opinion
may be construed to be at odds with current regulations, the regulations are obviously
controlling." Id. at 8. The Rome Housing Authority conformance decision is
distinguished from the instant conformance request, with the Administrator observing that his
decision in the New York conformance case "did not allow the addition of a helper
classification, but merely allowed a lower rate to be conformed to the wage determination for the
mechanic classification." Id. at 6 n.3.
[Page 31]
Analysis There can be little question that the
Administrator's decision to stop issuing elevator constructor helper wage rates as part of the Davis-
Bacon wage determination process represented a notable change from long-standing practice.
Although this Board (like its predecessor, the Wage Appeals Board) extends broad deference to the
Administrator in interpreting the statute and regulations, the level of deference is diminished if
"an interpretation [of the Administrator] . . . is unreasonable in some sense or . . . exhibits an
unexplained departure from past determinations." Titan IV Mobile Service Tower,
WAB Case No. 89-14 (May 10, 1991), slip op. at 7, citing Udall v. Tallman, 380 U.S. 1, 16-
17 (1965). The Supreme Court has held that heightened scrutiny is merited by an
adjudicator where an agency's interpretation of a statute or regulation is a departure from prior
interpretations. INS v. Cardoza-Fonseca, 480 U.S. 421, 446 n. 30.
Although the Administrator's decision to stop recognizing the elevator
helper constructor classification might appear at first to fall within this category of "changed
interpretation," on closer examination it is clear that the core elements of the Administrator's
policy regarding the 3-part helper test did not change at all in these cases. Leaving aside the
period when the 1982-1989 helper regulation was being developed and implemented, the
Administrator's articulation of the three elements of the helper test has been unchanged since the
1970's, if not before. Certainly by the time the 1982-89 helper regulation was suspended in 1993,
the Administrator's articulation of the 3-part test was crystal clear. See 58 Fed. Reg. 58954
(Nov. 5, 1993). Thus, we are not really confronted in these cases with a change of policy, but with
a reexamination of the facts and circumstances surrounding the elevator constructor helper
classification, and how the 3-part test applies.
We consider first Mid-American's argument that the Administrator's decisions
not to conform the elevator helper classification result in a staffing pattern that is inconsistent with
locally prevailing practice. All of the elevator industry parties (Mid-American, Miami and IUEC)
appear to be in agreement about the basic organization of elevator construction work, which most
often revolves around paired crews of mechanics and helpers. Accepting this as true, and even
accepting Mid-American's argument that the Administrator's denial of the conformance request
produces a staffing pattern that is out-of-sync with prevailing practice, it does not follow that the
Administrator's decision is in conflict with either the statute or regulations and must be reversed.
In this regard, we note that the oft-repeated declaration that the purpose of the
Davis-Bacon Act is to "hold . . . a mirror up to local prevailing wage conditions and reflect .
. . them" on federal construction projects is a simplistic and inaccurate characterization of the
statute. Reply - Mid-Am at 4, quoting Hawk View, slip op. at 8. The statute is more
complex than this. The goal of the Davis-Bacon Act is to ensure that the federal government's
construction program does not subvert local wage structures. To accomplish this objective, Congress
has mandated that laborers and mechanics working on federal construction contracts must be paid
no less than the local prevailing wage for their job classification, as determined by the Secretary of
Labor. 40 U.S.C. §276a. Within the federal government, the Secretary is designated as the
central authority responsible for devising the Act's overall enforcement scheme. Reorganization Plan
No. 14 of 1950, 5 U.S.C. Appendix.
[Page 32]
From a purely logical standpoint, the underlying premise of the Davis-Bacon
prevailing wage law is inconsistent with Mid-American's claim that wage patterns on federal
construction projects simply should "mirror" local wage rates. After all, it is virtually
inevitable that some laborers and mechanics who work in a given jurisdiction are paid
less than the prevailing wage rates determined by the Secretary, yet the congressionally-
mandated prevailing wage scheme requires that all construction workers be paid not-less-
than the prevailing rate when employed on a federal construction contract even those workers who
might otherwise be employed on non-Federal projects in the local construction industry at lower pay
scales. The goal of the Act is not merely to replicate (or "mirror") the full range of local
pay scales, but to require that workers be paid at least the prevailing rate.
Moreover, the Davis-Bacon Act does not even address the issue of workers
in training positions or subjourneyman classifications. Although it is clear that the Secretary has
authority in some instances to include subjourneyman classifications within the overall prevailing
wage scheme, particularly in light of the appellate court decisions in Building and Construction
Trades Dep't, AFL-CIO v. Donovan, supra, and Building and Construction
Trades Dep't, AFL-CIO v. Martin, supra, the historical record suggests that
since the inception of the Act in 1935, the Secretary at all times has been highly selective in
determining what subjourneyman classifications would be recognized on Federal construction
projects, and at what wage and fringe benefit rates. Under the existing DBA regulations, only two
subjourneyman classifications are recognized apprentices and trainees and in both cases, workers
in these training classifications are allowed to be paid less than the prevailing laborer or mechanic
wage for their craft only if they participate in training programs that have been approved by
government agencies.17
In sum, the prevailing wage mechanism chosen by Congress always has
included the possibility that some construction workers in a locality who normally earn less than the
prevailing wage might earn more when employed on a project subject to the Act; similarly, the
Secretary and the Administrator have a long history of limiting the circumstances under which
workers in a training mode would be allowed to work on federally-funded projects, generally
insisting that such workers be enrolled in government-approved training programs designed to
promote quality training and prevent abuse. The fact that these forces combine to produce a staffing
pattern that may not "mirror" local practice does not mean that the Administrator's
decisions are incorrect, either under the law or regulations.
With regard to the Labor Department documents cited by Miami, we agree that
if two of them (the Wage Appeals Board's 1986 Hawk View decision and the 1973 Opinion
WH-202) were viewed as precedent binding on the Administrator and this Board, then the
Administrator's decision to stop issuing elevator helper wage rates would raise serious concern.
Miami is correct in asserting that these documents both seem to suggest that when a union rate for
a particular craft prevails in a locality, and the underlying collective bargaining agreement includes
[Page 33]
a helper classification, then the Wage and Hour Division automatically should recognize the
collectively-bargained helper classification and publish a helper wage rate arguably, without a
detailed evaluation of the classification under the 3-part helper test. If this were the Administrator's
policy, then a strong argument could be made that the elevator helper classification should be
recognized. However, when viewed in the broader context, we agree with the Administrator that
neither Hawk View nor Opinion WH-202 compels a reversal of the Administrator's decisions
in these cases.
Leaving aside the period when the 1982-1989 helper regulation was at issue,
it is clear that the Administrator's articulated 3-part test for recognizing helpers has been unchanged
for more than 20 years, and this test repeatedly was endorsed by the Wage Appeals Board acting on
behalf of the Secretary. See cases cited at p. 5, supra. Moreover, although not
formally codified, the 3-part test explicitly is declared as the Administrator's standard in the 1993
notice suspending the helper regulations. 58 Fed. Reg. 58954 (Nov. 5, 1993). In light of this history,
we share the Administrator's view that the majority opinion in Hawk View must be viewed
as an aberration tied to the specific facts confronting the Board in the case, and not precedential. As
best we can determine, Hawk View is the only decision of the Wage Appeals Board
or the Administrative Review Board which adopts a helper classification because it is found within
a prevailing collective bargaining agreement; as such, it stands in sharp contrast both to earlier and
later decisions in which collectively-bargained helper classifications are rejected if they do not meet
the standards of the 3-part helper test. The Board's decision in Hawk View reflects a level
of deference to privately-negotiated arrangements between employers and labor unions that is
inconsistent with the Administrator's declared policy on helpers, a policy that is not dependent in any
way on the existence or non-existence of collectively-bargained helper rates. We need not decide
here whether or under what circumstances the Administrator might lawfully adopt a policy of
recognizing helper job classifications simply because they appear in collective bargaining
agreements; the question is not presented in these cases. What is significant, however, is that the
Wage Appeals Board in Hawk View accorded insufficient deference to the Administrator's
lawful policy.
The Davis-Bacon Act offers little guidance regarding the methodology to be
used by the Secretary when determining the classifications of laborers and mechanics and the
associated prevailing wage rates, other than a specific statutory definition for the term
"locality." Because the statute is so spare in providing direction to the Secretary, rarely
are there interpretive questions that can be determined directly by an adjudicator based on the
traditional tools of statutory interpretation; instead, the more common function of the Board is to
review the Administrator's interpretation of the statute to determine whether the Administrator's
construction is a permissible construction of the statute, so long as it is consistent with congressional
intent. Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843
(1984). This evaluation of the agency's action relies upon such factors as the statutory scheme,
structure and goals; legislative intent, the quality of the agency's reasoning, and the agency's
consistency (or, if the agency interpretation represents a change of policy, its reasons for making the
change). OFCCP v. Keebler, ARB Case No. 97-127, ALJ Case No. 87-OFC-20 (Dec. 21,
1999), slip op. at 17, citing Morton v. Ruiz, 415 U.S. 199, 237 (1974). In our view,
this was the task confronting the Wage Appeals Board in reviewing the Administrator's conformance
decision in Hawk View.
[Page 34]
Because the Board in Hawk View did not repudiate the Administrator's
basic standard for approving helper classifications, the decision reversing the Administrator only can
be explained as being limited to the peculiar facts of the case.
With regard to the concurring opinion of Member Dunn, which apparently
would direct the Administrator to adopt any helper classification that appears in a collective
bargaining agreement in situations where union wage rates are found to prevail, we note our
disagreement. In light of the Administrator's declared policy on helpers when the decision was
issued in 1986 (i.e., a period when the 1982 helper regulation was not being enforced, and
the 3-part test effectively was the Administrator's enforcement policy), the concurrence reflects a
significant overreaching in its view of the Board's role.
Opinion WH-202 The 1973 Wage and Hour Division opinion letter
cited by Miami is ambiguous. Like the Dunn concurrence in Hawk View, the opinion letter
suggests that for crafts in which the local union wage rate prevails, the Division will publish a helper
wage rate when it appears as part of the (prevailing) collective bargaining agreement. However, akin
to the 3-part helper test, the opinion letter also notes that a helper rate will not be recognized if it is
determined that the helper is a participant in an informal training program.
Advisory opinions issued by the Wage and Hour Division have limited
precedential significance. They can be relied upon by employers as a defense to an enforcement
action until such time as they are "rescinded, modified, or determined by judicial authority to
be invalid." 29 C.F.R. §790.17(h). One court has observed that such advisory opinions
are "expressly issued subject to change by the Administrator," and the advice offered is
not valid for any period after the Administrator has announced a change in policy. Taylor-
Callahan-Coleman Counties District Adult Probation Dep't v. Dole, 948 F.2d 953, 957 (5th Cir.
1991), citing 29 C.F.R. §790.17(h) - (i).
We note first that the two cases before this Board are denials of conformance
requests, and are not enforcement actions. This difference plainly diminishes any precedential
significance that Opinion WH-202 might otherwise possess. But more important, excepting for the
moment the period when the 1982-1989 helper regulation was at issue, since the mid-1970s both the
Administrator and the Board repeatedly have stated that the controlling standard for recognizing
helpers is the 3-part test, including the definitive policy statement in the 1993 suspension regulation.
We therefore agree with the Administrator that the 1973 opinion letter effectively has been rescinded
by subsequent DOL policy declarations on this issue.
[Page 35]
With regard to the Rome Housing Authority conformance matter, we agree
with the Administrator that it is distinguishable from these cases. In the Miami and Mid-American
cases, the wage determinations already included a prevailing wage rate for the elevator mechanic
classification, and the contractors requested the addition of the elevator constructor helper
classification. In contrast, the Rome Housing Authority matter involved a request that both
a mechanic and helper rate be added to the wage determination. The Administrator declined to
conform the helper classification, observing that it did not meet the 3-part test, but agreed to add the
mechanic classification at the helper wage rate. Although we are unclear
why this choice was made, the fact is that the Administrator's application of the 3-part test in the
Rome Housing Authority matter was no different from his actions in these cases. We note also that
the Board has consistently held that a party seeking a conformed rate may not rely on a wage
determination granted to another party, regardless of the similarity of work in question. See, e.g.,
J.A. Languet Construction Company, WAB Case No. 94-18 (Apr. 27, 1995).
VII. CONCLUSION
The Administrator's decisions denying the conformance requests in these two
cases are within the range of discretion accorded under the Act and its implementing regulations and
are reasonable. The Petitions for Review are DENIED.18
SO ORDERED.
PAUL GREENBERG
Chair
CYNTHIA L. ATTWOOD
Member
[ENDNOTES]
1 Prevailing wage legislation applicable to
federal contracts was adopted only after similar labor standards legislation had been enacted by many states,
often decades earlier. For example, a law requiring that employees working on public contracts be paid
wages "not less than the current rate of per diem wages in the locality where the work is
performed" was enacted in Kansas in 1891. 1891 Kan. Sess. Laws c. 114, quoted in State ex rel.
Ives v. Martindale, 47 Kan. 147, 27 P. 852 (1891).
2 The trainee classification was added
to the Davis-Bacon regulations in 1971 pursuant to Presidential directive as a complement to the long-
recognized apprenticeship programs. Trainees could be employed on projects subject to DBA standards if
they were enrolled in on-the-job training programs approved by the Labor Department. 36 Fed. Reg. 19304
(Oct. 2, 1971).
The trainee program provision was designed to address several problems. During the
period of the war in Vietnam, there were significant manpower shortages in the construction industry in the
United States, producing wage inflation. The Labor Department's manpower training programs already had
30,000 construction trainees enrolled in non-apprenticeship programs nationwide; modifying the Davis-
Bacon regulations to allow these trainees to work on DBA-covered projects created job opportunities for the
trainees while expanding the overall construction labor pool. In addition, the expanded employment of
minority workers enrolled in DOL-approved "hometown" training plans (modeled on the
"Philadelphia Plan") was viewed as a vehicle to promote equal employment opportunity in the
construction industry under Executive Order 11246. The program also anticipated using the trainee
classification for introducing returning Vietnam veterans into the construction labor force. See
"Combating Construction Inflation and Meeting Future Construction Needs," 6 Weekly
Comp. of Pres. Doc. 376 (Mar. 17, 1970). When the trainee regulation was first promulgated in 1971, it
required federal agencies to include a requirement in their construction contracts that apprentices and trainees
be employed on federal construction projects, and that 25% of these workers be in their first year of training.
36 Fed. Reg. 19304, 305.
3 Detailed histories of the 1982 helper
regulation can be found at 62 Fed. Reg. 68641 (Dec. 30, 1996) and 64 Fed. Reg. 17442 (Apr. 9, 1999).
4 Each of these two consolidated
appeals has a separate Administrative Record (AR). Throughout this decision, materials in the
Administrative Record accompanying Case No. 97-145 (Mid-American Elevator Co., Inc.) will be referred
to as "AR Mid-Am Tab __." Materials in the Administrative Record for Case No. 98-086
(Miami Elevator Co.) will be referred to as "AR Miami Tab __."
5 The 1996 Final Rule was challenged
in the courts. On July 23, 1997, the U.S. District Court for the District of Columbia upheld the Department's
final rule suspending the helper regulations until a new rulemaking proceeding is completed, or the
Department decides to reinstate the regulations. Associated Builders & Contractors, Inc. v. Herman,
976 F.Supp. 1 (D.D.C. 1997). In 1999, the Wage and Hour Division published a Notice of Proposed
Rulemaking stating its intent to permanently re-establish its policy allowing the use of helpers only where
their duties are clearly defined and distinct from journeymen. 64 Fed. Reg. 17441 (Apr. 1, 1999).
6 Although Poirier's letter indicates
that a copy of the labor agreement was forwarded to the Wage and Hour Division as an attachment to the
conformance request on the CHA elevator contract, the agreement is not found at Tab D of the
Administrative Record. However, copies of the labor agreement are found at Tabs E and G of the Mid-
American Administrative Record. In both instances, they are associated with correspondence relating to
conformance requests by Mid-American on construction contracts with the Chicago Transit
Authority (CTA). It is unclear why the materials from the CTA contract are included in the Administrative
Record in this case, because Mid-American's Petition for Review was limited to the Chicago
Housing Authority contract only and did not ask the Board to address possible problems with
Transit Authority contracts. A December 27, 1996, letter from then-Section Chief Nila Stovall to Mid-
American in connection with the CTA conformance requests also is found in the Administrative Record in
this case at Tab F.
It is unclear whether similar materials from Mid-American's CHA
conformance request may have been omitted from the Administrative Record in this case. We note,
however, that none of the parties have suggested that the Record is incomplete.
7 Like the Section Chief earlier, the
National Office Program Administrator again merged her discussion of the uncodified 3-part helper test with
the general conformance requirements found in the Davis-Bacon regulations at 29 C.F.R. §5.5(a).
Id. at 2.
8 The same Opinion letter states that
"[t]he Department will not, absent a clear showing of prevailing practice, issue or approve helper
classifications when in local usage this classification is actually an informal trainee position."
Id.
9 In connection with the Board's
hearing in June 1998, the Board was given a copy of an arbitration decision issued by arbitrator Stephen L.
Hayford on March 2, 1998, Mid-American Elevator Co., Inc. v. Int'l Union of Elevator Constructors,
Local No. 2, FMCS Case No. 97-13958. The arbitration related to a claim by Mid-American that IUEC
Local 2 failed to cooperate in the company's efforts to obtain approval of the Davis-Bacon helper
conformance, and that the alleged lack of cooperation was a violation of the labor agreement. We have
reviewed Arbitrator Hayford's decision, but conclude that it is irrelevant to the specific issues presented to
the Board in these cases, i.e. whether the elevator constructor helper classification meets the
Administrator's express standard.
10 Because Miami Elevator earlier had
submitted to the Administrator a document purporting to list the differing duties that the company had
assigned to elevator helpers and mechanics on the Tampa courthouse project, the Administrator's final
decision letter to Miami also addressed Miami's material. However, the Administrator discounted Miami's
data submission by relying on the same language from the Standard Agreement quoted above, observing also
that he (the Administrator) had "no evidence to suggest that it was the practice among union
contractors who performed elevator construction work. . . [in Tampa] to restrict the duties of elevator
constructor helpers" along the lines implemented by Miami Elevator. See AR Miami Tab A
at 3-4.
11 In this decision, the submissions
of the parties are abbreviated as follows: