MATTAPONY TOWERS APARTMENTS, WAB No. 64-02 (WAB June 29, 1965)
CCASE:
MATTAPONY TOWERS APARTMENT
DDATE:
19650629
TTEXT:
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[1] U.S. DEPARTMENT OF LABOR
WAGE APPEALS BOARD
In the Matter of
WAB Case
Wage Determinations Applicable to FHA No. 64-02
Project No. 000-00124, Mattapony Towers
Apartments, at Bladensburg, Prince
Georges County, Maryland Dated:
June 29, 1965
MATTAPONY TOWERS APARTMENTS
Petitioner,
Before: Oscar S. SMITH, Chairman, and BARKER and
STUART ROTHMAN, Members.
DECISION
STATEMENT OF CASE
This is a proceeding under Order No. 32-63 of the Secretary of
Labor, as amended, following a petition for review filed on January
5, 1965, by Mattapony Towers Apartments, pursuant to the Wage
Appeals Board Rules of Procedure, Part 7 (29 CFR, Subtitle A). The
petition requests review of certain wage determinations applicable
to FHA Project No. 000- 00124, Mattapony Towers Apartments,
Bladensburg, Maryland, issued pursuant to section 212 (a) of the
National Housing Act (12 U.S.C. [1]
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[2] 1715c) and Department of Labor Regulations, Parts 1 and 5 (29 CFR,
Subtitle A).
On August 21, 1964, petitioner notified the Wage Appeals Board
that the Solicitor's Decision No. AC-12,878, dated November 21,
1963, would be appealed. The petition was not filed until January
5, 1965, and contained a request for sixty days to prepare "further
supporting data in its behalf." During the 60-day period, the
Solicitor's latest determination was issued on April 7, 1965.
There have been a number of determinations for the project but each
is merely a successive issuance, either modifying or superseding
the initial one inasmuch as a determination expires in 120 days.
It is this latest determination which is the current subject of
this decision.
These determinations all apply to the construction of FHA
Project No. 000-00124, Mattapony Towers I, Bladensburg, Prince
Georges County Maryland, an elevator, masonry, steel joist,
concrete decks, 104 unit apartment building, six or seven stories
high.
All known interested parties were notified that the petition
had been filed. An oral hearing was set for May 20, 1965. On May
18 the petitioner requested, without objection, that the case be
decided without hearing. Additional time to June 4 for submission
of written statements was granted to all parties.
The National Constructors Association, the Associated General
Contractors of America, the Home Builders' Association of
Metropolitan Washington, Inc., the Master Builders' Association,
Inc., the International Brotherhood of Electrical Workers, the
United Association of [2]
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[3] Journeymen and Apprentices of the Plumbing and Pipefitting Industry,
and the Building and Construction Trades Department, AFL-CIO, although
notified, did not submit statements.
On March 25, 1965, the United Association of Journeymen and
Apprentices of the Plumbing and Pipefitting Industry filed a motion
to intervene on behalf of Plumbers Local No. 5 and Steamfitters
Local No. 602. The motion was withdrawn on May 10.
FINDINGS OF FACT
The FHA on June 4, 1963, requested a wage determination for
the subject project. Decision AB-34,788 was issued on July 15.
The project description in the FHA request was "FHA Project No.
000-00124, Mattapony Towers I, Bladensburg, Maryland, Elevator,
Masonry, steel joist, concrete decks, 104 units." Pursuant to
another request on September 9, with the same project description,
Determination AC-7,004 was issued on September 17 containing the
same rates.
Subsequently FHA advised that the determination was applicable
to the construction of a seven-story, elevator apartment building.
As a result Determination AC-7,004 was superseded by AC-8,870,
dated October 1, 1963. The new decision contained the prevailing
wage rates paid on general building construction. A comparison of
AB-34,788 and AC-8,870 shows an hourly differential of from 45
cents to $2.15 based on 15 representative major classifications.
The basis for the increased rates was the new information that
the proposed structure would be a seven-story apartment building.[3]
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[4] In the area concerned the Office of the Solicitor applies
lower rates to residential construction with less than four floors.
The regular building construction rates apply to high-rise
apartments and to most other types of construction, excluding heavy
and highway construction.
On November 21, 1963, Determination AC-12,878 was issued with
substantially the same rates as contained in AC-8,870. The
petitioner objected to this schedule of rates and a conference was
held on January 8, 1964, in the office of the Solicitor. The
petitioner was invited to submit any evidence it might have
indicating wage rates being paid on construction projects of a
character similar to the proposed contract work in the area
differing from those contained in AC-12,878. This invitation was
extended during a second meeting held on February 26, 1964.
A subsequent decision, AC-17,976, was issued on April 10,
1964, containing general building construction rates pursuant to an
FHA request dated January 23, 1964. The delay in issuance resulted
from the invitation to the petitioner to submit relevant evidence.
As of the date AC-17,976 was issued no evidence had been received.
On May 26, 1964, petitioner alleged that the wage rates issued
for the subject project are not those prevailing on similar
construction in the area. Specific requests for wage evidence were
then made by the Office of the Solicitor to numerous interested
parties. The information submitted by the petitioner and others
was compiled. At the conclusion of the study the Office of the
Solicitor affirmed its decision that the rates contained in
AC-17,976 were those prevailing in the area on [4]
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[5] construction of similar character, and so notified the petitioner by
letter dated June 25. In a conference held on July 9 between the
petitioner and representatives of the Office of the Solicitor, the
decision of June 25 was reaffirmed.
At the time the petition was filed with the Wage Appeals Board
the most recent decision issued for the project had expired, i.e.,
AC-17,976 expiring August 8, 1964.
There was no determination ln effect for the period August 8,
1964, to April 7, 1965, the date current Wage Determination
AD-12,370 was issued. The description of work in the current
determination reads "FHA Project No. 000-00124, FHA Commitment No.
000-00124, Mattapony Towers No. 1, 104 units, masonry bearing wall,
elevator, steel bar joist, [*] six stories [*] [*(emphasis
added)*]."
ISSUES AND CONCLUSIONS
The question for decision is whether laborers and mechanics to
be employed on the proposed Mattapony Towers I Apartments are to
receive the rates paid laborers and mechanics in Prince Georges
County on general building construction or the rates paid on
garden-type residential construction. That is, to which of these
two types of construction is the proposed Mattapony Towers
construction similar for the purpose of determining the application
of the National Housing Act's prevailing wage provisions.
In Prince Georges County, which is in the Washington
metropolitan area, two schedules of rates are applied to
multifamily residential construction by the construction industry.
The lower of the [5]
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[6] two sets of rates applies to garden-type
multifamily residential construction; /FN1/ the higher applies to
all other types of apartment construction. The higher rates are
the "general building rates" applicable to "commercial" as well as
certain kinds of apartment construction. The Home Builders
Association of Metropolitan Washington, Inc., which represents home
builders active in apartment construction, recognizes and publishes
two separate schedules of wages for the two different kinds of
construction.
Normally, high-rise apartment construction /FN2/ is considered
general building construction, and takes the higher wage rates.
Garden-type construction /FN3/ normally takes the lower wage rates.
The rate differentials, pragmatically viewed, reflect basic
acceptance among residential builders that differences in
construction development and practice justify the differential.
The petitioner apparently reasons that the proposed apartment
development is either the same as other "high-rise" apartment
construction or it is different. If it is different from other
"high-rise" construction, so the argument goes, the proposed
development should not be classed with it but with garden-type
residential construction for wage rate purposes. [6]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
/FN1/ The description used for the two sets of rates is
"residential, walk-up or garden-type construction" and "general
building construction." The term "residential" however, is
applicable in a general way to all apartments used as residences.
/FN2/ High-rise apartment construction includes generally those
buildings over three floors, always with elevators, and require
fire proof construction techniques and materials and safety
stairway construction.
/FN3/ Walk-up or garden-type residential construction includes two
and three floor buildings usually without elevators. The fire
protection requirements in this type of construction are less than
the requirements in some other types of construction. [6]
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[7] The petitioner would say that it begs the question to
recognize that a higher schedule of wage rates for high-rise
apartment construction exists in Prince Georges County without a
determination that the proposed development in question is exactly
the same as other "high-rise" construction. But is this enough?
The reverse argument can be as readily made that the petitioner
must prove that the industry accepts the proposed development as
garden-type residential construction. The petitioner in pursuing
this matter before the Solicitor has not developed necessary
information that the industry accepts the idea that a 6 or 7 story
apartment can be taken out of the "high-rise" or "general building
construction" category and placed with garden-type construction
/FN4/ for wage rate purposes. Without support that the industry so
regards the project, the Solicitor cannot be faulted for not doing
so.
The factual point the petitioner would make is that the
proposed development is not like other highrise construction --
load-bearing walls in a 6 or 7 story building would be a currently
unique building experience in Prince Georges County, and must be
distinguished from usual "high-rise" construction of the structural
steel frame type or "flat slab" type. /FN5/ [7]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
/FN4/ The FHA, in a brief letter to the Board dated May 5, 1965,
states that while "it is not easy to characterize the proposed
construction as either 'general building' construction or as a
'garden-type' (residential) project", they believe that the
garden-type characteristics predominate.
/FN5/ Flat-slab construction, or apartments or otherwise, involves
use of reinforcing iron rods and poured cement to form the columnar
support and floor slabs, done floor by floor. [7]
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[8] High-rise apartment construction, whether wall-bearing, flat
slab, steel frame, or a combination thereof, is work which requires
substantially building construction techniques, such as those
relating to methods of fireproofing and fire-stop and safety
stairway construction. The latter techniques are generally not
involved in garden-type residential construction. The Home
Builders Association of Metropolitan Washington, Inc.,
distinguishes multi-story apartments of four stories and over from
other residential type construction. The architect's drawing /FN6/
of the proposed project suggests that it is similar to high-rise
apartments rather than garden-type apartments. The Prince Georges
County zoning regulations distinguish between the two types of
construction, garden-type apartments coming under the R-18 zoning
classification and apartments such as Mattapony Towers I under R-10
zoning. The county building code sets different standards for
garden-type apartment construction and apartments such as Mattapony
Towers I. For example, garden-type apartments need only have a
one-hour fire resistant first floor, whereas Mattapony Towers I and
similar apartment buildings are required to have a three-hour
resistant first floor. Finally, the proposed project is to be
equipped with elevators.
One of the factors viewed alone may not support a finding that
the project is high-rise construction. Yet when all are present,
we must conclude that the project retains and has not lost the
characteristics which places high-rise construction in the general
building category. [8]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
/FN6/ Refer to the illustration of the project [NOT] in the
Appendix. [8]
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[9] After a thorough review of the record and in the light of
experience in the building and construction industry, we have
reached the conclusion that as a practical construction matter the
fact that one type of construction uses load-bearing walls (the
kind of construction more frequently found today in garden-type
residential construction of 3 or less stories, but not exclusively
so) does not make that type of development any the less "high-rise
construction", nor does that one factor alone take a project out of
the category of general building construction and place it in
another.
Whether the building is viewed from the back (6 stories) or
the front (7 stories), the construction is multi-family elevator
type, masonry, relatively tall and vertical construction. It is
not a building of the walk-up or spreading, horizontal residential
type.
If in the instant case we look at (1) the work of the laborers
and mechanics; what they do, where, when and with whom they will do
it, with what materials they will work, and with what sequence and
scheduling of development operations; (2) the architectural,
engineering and other development and planning problems; and (3)
the finished result, we conclude that the construction is a 6 or 7
story "high-rise" apartment building retaining much more of the
characteristics of normal "high-rise" construction than the reverse
situation. As we understand the application of the two schedules
in the industry, all construction which is not garden-type takes
the general building rates.
We reach the conclusion that the laborers and mechanics
working on the Mattapony Towers I will be employed on construction similar [9]
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[10] to high-rise apartment construction and other
"general building construction" of which high-rise apartment
construction is a part in Prince Georges County. The decision of
the Solicitor is affirmed.
It is noted that petitioner argues that under Section 212(a)
of the National Housing Act the Secretary of Labor, in determining
prevailing wage rates for housing projects, should consider only
other housing construction. In view of our disposition of this
matter, we do not think that it makes any difference unless it is
the petitioner's position that if this is not garden-type
construction the rates to be applied should be the rates applicable
to other types of high-rise housing only, and that the rates for
high-rise housing and other general or commercial construction are
different. Whatever question there may have been with respect to
this matter before, the 1964 amendment to the Davis-Bacon Act and
related statutes makes clear that the Secretary shall perform his
wage determination functions "in accordance with the Davis-Bacon
Act." The decision of the Secretary of Labor in finding that
high-rise apartment construction in Prince Georges County is in the
same category of general building construction was made in
conformity with the Federal Housing Act and the Davis-Bacon Act.
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 finds that the rates
predetermined by the [10]
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[11] Office of the Solicitor of Labor are
those prevailing on construction of a character similar to the
proposed contract work and, accordingly, the decision of the
Solicitor of Labor is affirmed.
Oscar S. Smith, Chairman
Stuart Rothman, Member
Clarence D. Barker, Member
WAGE APPEALS BOARD [11]
