HUNTSVILLE COUNTY AIRPORT AUTHORITY, WAB No. 64-01 (WAB Aug. 31, 1964)
CCASE:
HUNTSVILLE COUNTY AIRPORT AUTHORITY
DDATE:
19640831
TTEXT:
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[1] WAGE APPEALS BOARD
UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, D. C.
In the Matter of:
HUNTSVILLE-MADISON COUNTY
AIRPORT AUTHORITY
The determination of the prevailing WAB Case
wage rates applicable to the site No. 64-01
preparation for runway, aprons, and
taxiways at the Huntsville-Madison Dated:
County Airport, Madison County, August 31, 1964
Alabama
Huntsville-Madison County
Airport Authority,
Petitioner
Mr. Marx Leva and Mr. Alexander B. Hawes,
of Washington, D.C.
for the Petitioner
Mr. Paul Tenney,
for the Solicitor of Labor
Before: Smith, Chairman, Barker and Rothman, Members
DECISION OF THE BOARD
This is a proceeding under Order No. 32-63 of the Secretary of
Labor, as amended, following a Petition for Review filed on July
31, 1964, by the Huntsville-Madison County Airport Authority,
hereinafter called the Petitioner, pursuant to the Wage Appeals
Board Rules of Procedure, Part 7, (29 C.F.R., Subtitle A),
hereinafter called WAB Regs. The Petition requests review of three
wage classifications in Wage Determination No. AC-31,511, dated
June 10, 1964, confirmed after protest, July 28, 1964, and issued
pursuant to the Federal Airport Act (29 U.S.C. 1114) and Department
of Labor Regulations, Part I (29 C.F.R., Subtitle A). [1]
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[2] Wage Determination No. AC-31,511 applies to the site
preparation contract for the runway, apron, and taxiways at the
Huntsville-Madison County Airport, which is located in Madison
County, Alabama.
The following organizations were notified that the Petition
had been filed, but did not file statements:
Federal Aviation Agency
Associated General Contractors of America, Inc.
National Constructors Association
The Building and Construction Trades Department, AFL-CIO, the
International Union of Operating Engineers and the International
Hod Carriers, Building and Common Laborers Union filed a joint
written statement in advance of the hearing conference.
The Petitioner and the Solicitor, through respective counsel,
presented argument at a hearing conference held pursuant to an
agreed notice on August 13, 1964, at the hearing room of the Wage
Appeals Board, 701 Vanguard Building, 1111 20th Street, N.W.
Washington, D. C. The Building and Construction Trades Department,
AFL-CIO made a brief statement.
Upon conclusion of this conference, the parties were offered
until Monday, August 17, 1964, to submit additional statements.
This time was extended to August 19 to permit the Solicitor to
submit additional information requested by the Wage Appeals Board.
Both parties submitted statements.
As to the wage determination issue raised by this Petition,
the question is whether or not the Solicitor's wage determinations
for the Group A and Group B power equipment operators and for
unskilled laborers meet the statutory test of the Federal Airport
Act (49 U.S.C. 1114). This Act requires that the minimum rates
of wages which a contractor shall pay to skilled and unskilled
laborers shall be predetermined by the Secretary of Labor, and
shall be included in proposals on bids for the work. The [2]
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[3] accuracy of the wage determination in turn involves three
subordinate questions as raised by the Petitioner: (1) whether
Madison County is the appropriate geographical area for the
collection of the prevailing wage computations data; (2) whether
all projects of a character similar to the contract work were
included in the computations including another airport in an
adjoining county; and (3) whether similar projects on the Redstone
Arsenal should have been excluded from the prevailing wage
computation.
The petitioner, in the development of its argument made in its
final memorandum of August 18, 1964, has requested as the relief
sought in this case that the Board either modify the wage
determination so as to establish lower minimum wage rates based
upon the information available in the files, or, if further
information is necessary, to remand the wage determination to the
Solicitor's Office with instructions to issue a modification in
accordance with the Board's directions. The Petitioner does not
submit figures as to what the rates would be if based on the
Petitioner's principles of prevailing wage data computations.
But before reaching any question of the accuracy of the three
wage predeterminations, there is the fundamental question whether
the Petition for Review was timely made under the facts and
circumstances of this case and in the light of the relief
requested. The Board has decided to accept review of this Petition
pursuant to Section 7.8(a) of the Wage Appeals Board Regulations in
order that it may discuss more fully, in a case of first
impression, the question of the timeliness of a Petition in the
light of the nature of the relief sought.
FINDINGS OF FACT
1. THE PROJECT
The proposed project which is the subject of this Petition is
located near Huntsville, Alabama, in Madison County, and is
immediately contiguous to the Limestone County boundary. The [3]
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[4] contract, pursuant to which this initial site preparation
project is to be constructed, is the first of a number of contracts
which will be awarded to complete the construction of a new airport
with a terminal building and other facilities to provide jet
transportation for the Huntsville area. More specifically, the
proposed site is 12 miles from Huntsville, 7 miles from Redstone
Arsenal, 13 miles from Decatur, Alabama, and 20 miles from
Hartselle, Alabama.
The actual work to be done under the contract is indicated by
the following listing of the descriptions of the various bid items:
Clearing of isolated trees, Clearing and grubbing, Unclassified
excavation, 14 items of various sizes of reinforced concrete
culvert pipe, 10 items of various types of brick inlets, 3 items of
concrete headwalls, 2 items of concrete box culverts, Preparing the
ground surface, Sowing seed.
2. SUMMARY OF THE SOLICITOR'S ACTIONS
On June 1, 1964, the initial wage determination for the
subject project, AC-31,125 was issued. An examination of the
record reveals that the rates contained in that determination were
the same as those usually predetermined by the Secretary of Labor
for all types of construction at the Redstone Arsenal, near
Huntsville. Upon review, which was prompted by objections to the
schedule filed by the contracting agency, the determination was
superseded June 10, 1964 (Wage Determination AC-31,511) to correct
the electricians' rate and to delete certain unneeded
classifications from the schedule.
Continued protests by the Huntsville-Madison County Airport
Authority resulted in a mail and telephone survey being conducted
by the Solicitor's staff to ascertain the accuracy of the rates
they had issued. The position of the Authority was that current
highway projects in nearby Cullman and Limestone Counties, as well
as an airport in adjoining Morgan County and certain bridge and
sewer projects in Madison County, should be considered in
determining the rates prevailing for this site preparation project
since in their opinion the work in such projects was closely [4]
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[5] similar to the subject project which consists primarily of
excavation and grading work.
The mail survey by the Solicitor revealed that there were some
eight or more projects with a total cost in excess of $2,000,000 of
a character similar to the proposed contract work underway in
Madison County. Accordingly, the Solicitor did not find it
necessary to go outside the county to obtain data upon which to
base the predetermination. On July 27 the manager of the
petitioner, accompanied by counsel, met with members of the
Solicitor's staff to discuss the petitioner's objections to the
decision. On July 28 Mr. Manger, under the signature of the
Solicitor of Labor, wrote counsel for the petitioner reaffirming
the rates previously determined. Whereupon the petitioner filed
this petition, on July 31, 1964, before the Wage Appeals Board.
Shortly after the Authority filed its petition the Board was
advised that the contract for the subject project had been awarded
and work had begun. Petitioner states that the low bidder has
indicated that he may consider adjusting the contract price
downward if the petitioner is successful in its attempt to have the
wage rates lowered for laborers and Group A and Group B power
equipment operators, which is the object of this petition.
CONCLUSIONS
On the entire file, and the statements of the parties made at
the hearing conference and submitted thereafter, the WAB decides as
follows:
The petitioner, the Huntsville-Madison County Airport
Authority, is an appropriate agency to file a petition. The
Solicitor is always a necessary party.
The petition for review was filed with the Wage Appeals Board
on July 31, 1964. The contract was awarded on July 31, 1964, and
work began shortly thereafter. Under the circumstances the Board
is faced with consideration of the kind of decision or remedy which
could be appropriate and effective. Section 7.4 of the Wage Appeals
Board's Rules and Regulations dealing [5]
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[6] with practice before the Board provides that:
Requests for review of wage determinations should be
timely made. Timeliness is dependent upon the pertinent
facts and circumstances involved. Such facts and
circumstances include the contract schedule of the
administering agency, the nature of the work involved,
its location, and any other relevant factors.
The petitioner would have the Wage Appeals Board read Section
7.4 in such a way that the long established rules of the Department
of Labor dealing with procedural and substantive matters in wage
determinations would give way to a new "flexible" approach under
the Wage Appeals Board. This is particularly the contention of the
petitioner with respect to the provisions of Section 5.4(b) of
Regulations, Part 5 (29 C.F.R., Subtitle A) dealing with the time
when modifications of a wage determination may be appropriately
made.
Contrary to the contention of the petitioner, we do not so
interpret the Wage Appeals Board Regulations. The purpose of
Section 7.4 is to make clear that a petitioner for review of a wage
determination must act with such diligence as to make it reasonable
for the petitioner to request the relief sought,. and for the Board
to consider granting it. The timeliness of an appeal must depend
upon the facts and circumstances of each case, and must be
considered in the light of the relief not only requested but which
is practical and feasible, consistent with like bidding conditions
for all bidders, and not in derogation of the Regulations designed
to achieve uniformity, fairness, and businesslike administration.
Section 5.4(c) of Regulations, Part 5, of the Secretary of
Labor deals with modifications of a wage determination based on
clerical error. Section 5.4(b) authorizes substantive
modifications made ten days prior to bid opening. Certainly, the
uniform interpretation of Regulations, Part 5, has been that a
modification will not be made with respect to a contract already
awarded. This interpretation of Regulations, Part 5, is, in the
view of the Board, the only one inferable from the language of the
regulations in so far as this case is concerned. An extreme
justification, if at [6]
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[7] all, and one not present here, would be
required to justify consideration of a change of a wage
determination by departure from the Regulations as here requested.
While it is not within the province of the Wage Appeals Board to
deal with contract award procedures, it notes that such a practice
could possibly result in a preferential treatment of bidders and
that the only fair thing to do in the event of an erroneous wage
determination discovered after bid opening would be to reject all
bids and to readvertise. A determination to proceed in any other
way because of conditions affecting the work, such as timing and
weather, are matters a contracting agency will have to weigh. We
need not discuss the powers of the Board to grant changes and
modifications of wage rates at appropriate times in individual
cases.
The Airport Authority was aware that an earlier project at the
existing Huntsville-Madison Airport carried the higher rates for
the classifications in question, and accordingly, was forewarned of
the possibility that the instant determination might follow similar
rules of decision. We do not wish to belabor the fact that there
was notice of the practice of finding the challenged rates, but
only to not that all parties, when a WAB review is contemplated,
must work cooperatively on behalf of the petitioner to permit a
timely consideration. We must also note that the petitioner
immediately appealed the Solicitor's final decision. Yet, the
Airport Authority, faced with the alternative of making an award,
or seeking review from the Wage Appeals Board, elected to go ahead
with the contract. The Board is no longer in a position to make a
determination that can effectively apply to this contract. While
the Solicitor's final determination preceded bid opening and award
by only a few days, a contracting agency, more than other persons,
is in a better position to affect the timing of contract awards in
the light of the relief requested.
For these reasons, the Board would like to indicate that it
cannot grant an effective remedy with respect to the instant
contract and its decision cannot have a retroactive effect upon the
wage determination that was made by the Solicitor.[7]
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[8] The petitioner did ask at the hearing conference that if the
relief requested could not be granted, it would like a further
discussion of the case. Having disposed of this case on the ground
that the petition was not timely filed, the Board is disinclined to
comment unnecessarily on other issues on the state of the record in
this case. This is not to say that in other proceedings the Board
will be unwilling, which it finds it desirable and necessary, to
discuss and to clarify the rules of decision followed by the
Solicitor in a particular case or to establish principles for
future guidance even though the order of the Board would not
effectively change a wage determination in a particular case. On
the basis of a fuller record than the instant one concerning the
interrelation of area wage, construction contract, and labor
contract practices and patterns, questions such as these may be
considered for purposes of clarification of the Solicitor's rules
of decision, even though a wage modification could not be timely
made in the contract involved. However, we prefer to leave the
questions and problems of establishing wage determination
principles to future cases and, as noted, dispose of this case on
the narrow ground that the petition was not timely filed.
ORDER
On the basis of the findings of fact and conclusions of law
and pursuant to Section 7.8(a) of the Board's Rules and
Regulations, the Wage Appeals Board hereby orders that the petition
be, and hereby is, dismissed.
Dated at Washington, D. C., this 31st day of August, 1964.
Oscar S. Smith, Chairman
Clarence D. Barker, Member
Stuart Rothman, Member [8]
