Pizzagalli Construction Co., ARB No. 98-090 (ARB
May 28, 1999)
U.S. Department of Labor
Administrative Review Board
200 Constitution Avenue, N.W.
Washington, D.C. 20210
ARB Case No. 98-090
DATE: May 28, 1999
In the Matter of:
PIZZAGALLI CONSTRUCTION CO.
With respect to application of Wage
determination No. SC940002 to Construction
Contract No. N62467-93-C-1096, Naval
Weapons Station, South Annex, Charleston, SC
Decision DC970003
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Petitioner:
Gary B. Warner, Pizzagalli Construction Co., South Burlington, Vermont
For the Respondent: Steven J. Mandel, Esq., Douglas J. Davidson, Esq., Lois R. Zuckerman, Esq.
U.S. Department of Labor, Washington, D.C.
FINAL DECISION AND ORDER
This case is before the Board on the petition of Pizzagalli Construction
Company (Pizzagalli) seeking review of the April 3, 1997 final ruling issued by the designee of
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the Acting Administrator, Wage and Hour Division, (the Acting Administrator) pursuant to the
Davis-Bacon Act, 40 U.S.C. §276a et seq. (1994)(DBA). See
29 C.F.R. Parts 1, 5 and 7 (1998). Pizzagalli challenges the Acting Administrator's denial
of its request to add a conformed Reinforcing Ironworker classification to Wage Determination
(WD) No. SC940002-2, issued February 11, 1994. This wage determination was applicable to
Pizzagalli's contract with the Department of the Navy for construction of an Engineering Facility
at the Naval Weapons Station, South Annex, Charleston, Charleston County, South Carolina.
Pizzagalli specifically argues that the Acting Administrator cannot properly base denial of the
conformance request on the Ironworker classification included in the 1994 wage determination,
because the job classifications and wage rates in the wage determination are based on a 1980
Davis-Bacon wage survey. As relief, Pizzagalli requests that the Board direct the Wage and
Hour Division to conduct a full area practice survey to determine whether area practice currently
supports the use of the Reinforcing Ironworker classification for the duties at issue.
For the reasons set forth below, we deny the petition for review, and affirm
the Acting Administrator's April 3, 1997 ruling.
BACKGROUND
On September 16, 1994, Pizzagalli was awarded a contract for
construction of a naval engineering facility in Charleston, South Carolina, Navy Contract No.
N62467-93-C-1096. Administrative Record (AR), Tab G. Work under the contract commenced
October 1, 1994. Id. Davis-Bacon Wage Determination No. SC940002-2 (applicable
to Berkeley, Charleston and Dorchester counties, S.C.) was included in the contract
specifications for the construction project. The wage determination included a job classification
of "Ironworker"at an hourly wage of $10.00, with an hourly fringe benefit rate of
.64. Significant to this case, "Ironworker" was the sole ironworker classification
in the wage determination, with no differentiation between structural and reinforcing ironwork.
AR, Tab H.
On November 13, 1995 (i.e., more than a year after the company
began work on the engineering facility project), Pizzagalli initiated a request to add a
"Reinforcing Ironworker" classification to the wage determination through a
conformance action. See 29 C.F.R. §5.5(a)(1)(ii)(A). The company proposed an
hourly wage of $6.47 for the additional job classification, with no fringe benefits.1 AR, Tab G.
1 The duties proposed by
Pizzagalli for the requested classification are as follows:
Positions and secures steel bars in concrete forms to reinforce concrete:
Determines number, sizes, shapes, locations of reinforcing rods from oral instruction.
Selects and places rods in forms, spacing and fastening them together, using wire and
pliers. Cuts bars to required lengths using acetylene torch. May reinforce concrete with
wire mesh. On most projects that do not have an extensive amount of reinforced
concrete on them a carpenter usually sets and ties reinforcing bars and wire mesh.
AR, Tab G.
2 Pizzagalli initially
submitted its appeal of the April 3, 1997 decision letter to the Administrator rather than to the Board.
As a result, the appeal was not actually filed with the Board until January 16, 1998. See Board's
Order of Mar. 11, 1998. Under the regulations governing appeal of a conformance decision, an
aggrieved party may file a petition for review "within a reasonable time." 29 C.F.R.
§7.9(a) (1998). We note that the Administrator does not object to this appeal on timeliness
grounds. Administrator's Statement in Opp. to Pet. for Rev. at 2 n.1. Under the specific circumstances
of this case, we conclude that the appeal meets the "reasonable time" requirement of the
regulations.
3 The pertinent
regulation, Section 5.5(a)(1)(v), is a former regulation that was reinstated in November 1993 to replace
the conformance regulation found at Section 5.5(a)(1)(ii). 58 Fed. Reg. 58954 (Nov. 5, 1993). At that
time, Section 5.5(a)(1)(ii), which contains language regarding conformance of "helpers"
under the DBA, was suspended indefinitely based on appropriations legislation prohibiting the
expenditure of DOL funds to administer "helper" regulations. Id.; see 59
Fed. Reg. 1029 (Jan. 7, 1994). A final rule continuing the suspension of Section 5.5(a)(1)(ii) was
published on December 30, 1996. 61 Fed. Reg. 68641 (Dec. 30, 1996); see 63 Fed. Reg. 61284
(Nov. 9, 1998).
4 In support of its
argument that a proper area practice survey was not conducted, Pizzagalli relies on an excerpt from the
Department of Labor's manual regarding DBA enforcement which states that it "may be
necessary" to examine local area practice in order to determine the proper classification of work
performed under DBA contracts. Petitioner's Resp. to the Acting Administrator's Pet. Opposing Review
at 3-4. Circumstances that have prompted the Administrator to conduct area practice surveys in
connection with review of conformance requests include the following:in the course of a labor
standards compliance investigation, In re J.A. Languet Const. Co., WAB Case No. 94-18, Apr.
27, 1995;in determining whether the laborer classification in the wage determination performed
work of proposed TV/Grout technician, sewer cleaner operator and helper classifications, In re
Inland Waters Pollution Control, Inc., WAB Case No. 94-12, Sept. 30, 1994; in determining
whether wage determination's carpenter classification performed work of proposed drywall mechanic,
In re More Drywall, Inc., WAB Case No. 90-20, Apr. 29, 1991. It is clear, however, that these
inquiries are conducted at the discretion of the Acting Administrator, and Pizzagalli does not argue that
the manual's "may be necessary" provision mandates that an area practice survey
be conducted in connection with review of a conformance request.