Texas Highway-Heavy Chapter, Associated General Contractors, WAB No. 68-06 and 68-07 (WAB Sept. 13, 1968)
CCASE:
JEFFERSON COUNTY, TX LEVEES V. SOL
DDATE:
19680913
TTEXT:
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[1] U.S. DEPARTMENT OF LABOR
WAGE APPEALS BOARD
In the Matter of
WAGE APPEALS BOARD
Petition for clarification of CASE NOS. 68-06
WAB Case No. 68-01 and petition for AND 68-07
review of the Solicitor's Wage
Determination Decision AI-3376
issued 8/15/68 relating to the
construction of certain levees
in Jefferson County, Texas DATED: September 13, 1968
Texas Highway-Heavy Chapter, Associated General Contractors,
Petitioner
Mr. James M. Richards,
for the petitioner;
Mr. Thomas X. Dunn,
for the Building Trades Department, AFL-CIO;
Mr. Ronald Borges,
for the National Joint Heavy and Highway Construction
Committee, AFL-CIO;
Mr. Alvin Bramow,
for the Solicitor of Labor
BEFORE: Oscar S. Smith, Chairman, Clarence D. Barker, and
Stuart Rothman, Members
DECISION AND ORDER
I
This is a proceeding under Order No. 32-63, as amended, of the
Secretary of Labor (29 CFR 188,761). [1]
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[2] Petitioner, Texas Highway-Heavy Branch of the Associated
General Contractors of America, filed a petition on July 25, 1968,
requesting "clarification" of the Board's decision In the Matter of
the determination of prevailing wage rates applicable to the
construction of levees in Jefferson County, Texas, under
Solicitor's Wage Decisions AH-15,331 and AH-15,332, Decision No.
68-01 dated May 15, 1968, (hereinafter referred to as Decision No.
68-01), and for such other relief as the Board may deem
appropriate. In its petition the Texas Highway-Heavy Branch
represented that the Wage Determination Division of the Office of
the Solicitor and itself were in disagreement as to the specific
highway projects which the Division should consider for wage
determination purposes as a result of this Board's Decision No.
68-01. The Texas Highway-Heavy Branch further represented that the
Wage Determination Division had indicated agreement to the
petitioner's seeking "clarification" of the Board's decision.
On August 15, 1968, and before the holding of oral argument on
the plaintiff's petition, the Wage Determination Division issued
Wage Decision AI-3376. Wage Decision AI-3376 is a re-issuance of
AH-15,332, which was before the Board in Decision No. 68-01.
Thus, the Wage Determination Division of the Office of the
Solicitor did not wait for this Board to consider whether or not it
would undertake to "clarify" that decision but proceeded on the
basis of its [2]
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[3] understanding of what projects should be considered similar or
dissimilar under the principles announced by the Board in that decision.
By telegram dated August 15, 1968, the Texas Highway-Heavy
Branch filed an amended petition requesting that this Board review
Wage Decision No. AI-3376.
At the oral proceeding held on August 21, 1968, the Office of
the Solicitor's representative indicated that the Office waived any
requirement that the Petitioner move for reconsideration by the
Solicitor of Wage Decision AI-3376 before any review by this Board.
Thus, the Office of the Solicitor has passed with finality on the
views of the petitioner as to the specific highway projects which
should be included as "projects of a character similar to the
contract work" involved. No useful purpose would be served by
requiring further proceedings before the Solicitor at this time.
The critical issue to be considered by the Board is whether or
not the Office of the Solicitor properly applied the "projects of
a character similar to the contract work" standard in making a
determination for levee work in Jefferson County. This is
essentially the same issue which the petitioner sought to bring
before the Board in its original motion for clarification. But the
Board does not consider this case to be before it for a declaratory
opinion in the nature of clarification. Decision AI-3376 has been issued [3]
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[4] and reconsideration by the Solicitor waived. The
petitioner has asked in an appropriate way that it be reviewed, and
the request has been separately docketed as WAB Case No.
68-07. /FN1/
II
The contract work covered by AI-3376 is a part of a
comprehensive system of levees to provide flood protection for the
city of Port Arthur, Texas. Segments of this construction work
have been before the Board in the Matter of prevailing wage rates
applicable to the construction of levees in Jefferson County,
Texas, under the Solicitor's Wage Decision AG-7983, Decision No.
67-07, (May 5, 1967), as well as Decision No. 68-01.
The contract work in question consists of first-stage
compacted earth levee construction including test embankment
sections, temporary drainage structures and a temporary bridge
across Alligator Bayou. /FN2/
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
/FN1/ The petitioner's motion for clarification (WAB 68-06) is
considered moot.
/FN2/ The pertinent invitation (No. DACW 64-68-B-0095) lists the
following items ln the bidding schedule:
1. Clearing, Grubbing and Debris
Removal Job Sum
2. Stripping 192,000 SY
3. Borrow Excavation 700,000 SY
4. Ditch Excavation 2,500 CY
5. 30 S.F. Culvert Sta. 944+50 150 LF
6. Bridge, Taylor Bayou-Sta 1025+00 300 LF
7. Bridge, Alligator Bayou
Road Sta. 7+50 200 LF
8. 15 SF Culvert Sta. 1061+50 200 LF
9. 50 SF Culvert, LNVA Canal
Sta. 1001+50 132 LF
10. 3 SF Culvert Sta. 1102+20 80 LF
11. 3 SF Culvert Sta. 1127+75 80 LF
12. 3 SF Culvert Sta. 1132+25 80 LF
13. 4-60" Dia. Culvert, Tiger
Bayou Sta. 1197+25 176 LF [3]
[FN2 CONTINUED ON PAGE 4]
14. 48" Dia. Culvert Sta. 1210+80 120 LF
15. Barbed Wire Fence with Gates 9,710 LF
16. Pipe Cross overs Job Sum
17. Extend Existing 3-60" Culvert Job Sum
[END FN2]
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[5] We understand that the final elevation of this segment of the
levee has not yet been established. But this project is of a test
nature and those participating in the oral proceeding were somewhat
vague about its immediate purpose. However, the petitioner points
out that out of some 246 stations in the specifications, only 30
call for elevation of 18 feet, while a good part of the earth work
has an elevation of only 3 feet. The contract work will not be at
this time connected with another segment of the levee and is being
constructed behind Port Arthur and not adjacent to any body of
water.
In reaching its determination, the Office of the Solicitor
considered and rejected the following five highway projects as not
being of a character similar to the contract work for the indicated
reasons: /FN3/ [5]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
/FN3/ The descriptions of the projects above listed are those of
the Solicitor. Tho petitioner describes differently the same
projects as follows:
1. Project No. F312(8) U.S. 90
Length of Embankment 5.7 miles
Excavation with ordinary compaction -- 31,000 CY
Rolling hours of compaction -- 3,319 hours
Lime-treated sub-grade -- 162,000 SY
Delivered borrow with compaction -- 106,533 CY [5]
[FN3 CONTINUED ON PAGE 6]
2. Project No. 053(26)
Length of job -- 1.4 miles
Excavation with ordinary compaction -- 163,000 CY
Rolling hours of compaction -- 2,800 hours
Lime-Treated sub-grade -- 88,000 SY
3. Project No. U1052(57) --State 73
Length of embankment -- 1.6 miles
Excavation with w/ ordinary compaction -- 11,440 CY
Lime-Treated sub-grade 95,674 SY
Delivered borrow, w/ ordinary compaction -- 578,346 CY
Rolling hours of compaction 1,433 hours
4. Project No. U1043(18) & RW65-8-55, U.S. 69, 96, 287
Length of embankment -- 1.3 miles
Excavation w/ordinary compaction 98,854 CY
Compaction rolling hours -- 6,100 hours
Lime-Treated sub-grade -- 190,833 SY
Delivered borrow, ordinary compaction -- 384,681 CY
5. Project No. U1043(20), U.S. 69, 96, and 287
Length of embankment -- .6 mile
Excavation, including ordinary compaction -- 40,318 CY
Rolling hours of compaction -- 1,412 hours
Lime-Treated sub-grade -- 67,342 SY
Delivered borrow w/ ordinary compaction -- 66,205 CY
[END FN 3]
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[6] 1. U.S. 90 West of Beaumont. General contractor -- Austin Road
Company in a joint venture with Worth Construction Company. The
majority of the embankment work is to provide a grade separation
and approach embankments. Aside from the fact that this project
involves dirt work, it is not otherwise similar to levees. Aside
from the grade separations the embankment for this highway is
approximately 3 feet above natural ground.
2. Spur 380 in Beaumont. General Contractor -- Trotti &
Thompson, Inc. This project is mostly a deep cut operation. There
is no similarity to a levee. The dirt excavated from this project
will be used to build an approach embankment for an overpass which
is not similar to a levee.
3. State Highway 73 in Port Arthur. General Contractor --
Trotti & Thompson. The project consists of an approach embankment [6]
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[7] for an overpass and is chiefly a common highway
project running along a three foot embankment.
4. U.S. 69, 96, and 287 South of Beaumont. General Contractor
-- Trotti & Thompson. This project is a normal dual lane highway
with overpasses, grade separations, etc.
5. U.S. 69, 96, and 287 in Beaumont. General Contractor --
Holland and Little and Harold Martin. This project is essentially
like 4 above, except is in a different location.
The petitioner's position is that not only should they have
been considered, but the following additional projects should have
been included:
1. Project No. U53(25)SPUR 380
Length of project -- .9 mile
Excavation w/ ordinary compaction -- 19,500 yds.
Rolling hours of compaction -- 513 hours
Lime-treated sub-grade -- 31,882 SY
2. Project No. 110-8(61) etc. 1H10 & U.S. 90
Length of embankment -- .6 miles
Excavation w/ ordinary compaction -- 18,000 CY
Rolling hours of compaction -- 810 hours
Lime-treated sub-grade -- 27,201 SY
Delivered borrow, ordinary compaction -- 48,173 CY
3. Project No. SU654, St. 87
Length of embankment -- 1.4 miles
Excavation w/ ordinary compaction -- 13,124 CY
Rolling hours for compaction -- 554 hours
Delivered borrow, ordinary compaction -- 9,665 CY
4. Project No. U312(6) etc.
Length of embankment -- 3.6 mlles
Excavation ordinary compaction -- 49,059 CY
Rolling hours for compaction --1,481 hours
Lime-treated sub-grade -- 99,561 SY
Delivered borrow, ordinary compaction -- 144,827 CY
The Solicitor tells us that the reason for not passing on the
four projects listed above is that his consideration was limited
only to current construction projects. At the hearing the
petitioner did not appear to advance his reasons for questioning
this limitation. In any event, the record is not sufficiently
developed to permit any conclusion that the Solicitor erred here. [7]
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[8] The Solicitor considered the following projects to be of a
character similar to the contract work:
1. Piledriving for docks in Jefferson County
General contractor -- Trotti & Thompson. To be finished July
1, 1968. Approximate value $200,000.
2. New Unit for Dupont Plant. General Contractor --
Spindletop Construction -- Subcontractor for Site Work
including 11' - 12' levees is Robert L. Damrel, Inc.; 95%
complete as of June 20, 1968; Approximate value of Prime
Contract $250,000
3. Levee around tank farms at Gulf Oil
General contractor -- H. B. Waddell; Subcontractor for
rebuilding 6' - 11' levees is Robert L. Damrel, Inc. - 90%
complete as of June 20, 1968; Approximate value of Prime
Contract $600,000
4. Port Arthur Levee (1 segment) -- General contractor --
Gulf Coast Bridge; 58% complete as of June 1, 1968;
Approximate value -- $140,000
5. New Unit for Goodrich-Gulf at Port Neches; General
Contractor -- Fluor Corporation; Subcontractor for Roads,
fill, Drainage, and Levees is Kyte Construction Company; 95%
complete as of June 24, 1968; Approximate value of
Subcontract -- $75,000
6. Site Work for Kansas City Railroad -- Predominately
Railroad Embankment Work; General Contractor -- Vollmer
Construction Company; Subcontractor for all work is Kyte
Construction Co.; 2% complete as of June 24, 1968; Approximate
value -- $7 - $9 million.
7. Construction of Wharves, Transit Shed and Associated Work
at Port of Port Arthur; Consists of gigantic fill operation
size of 3 football fields; compacting; parking areas; loading
area; and transit shed. [8]
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[9] General Contractor --Texas Gulf Construction; Project is
currently under way. Approximate value -- $4,400,000
8. Rebuild Reservoir at Texaco Plant; General Contractor --
Mar-Len; Essentially a hole and embankment; 70% complete as of
June 25, 1968; Approximate value -- $60,000
9. Site Work including levee for Lift Station; Contractor --
Trotti & Thompson; 90% complete as of June 20, 1968;
Approximate value -- $130,000
10. Board Roads, Levees, Transmission Towers; General
Contractor -- Bo-Mac; 99% complete as of June 25, 1968;
Approximate value -- $345,000
11. Sanitary Sewer Line; General Contractor -- Mar-Len;
Subcontractor -- Tony Tantillo; 10% complete as of June 21,
1968; Approximate value -- $193,941
12. Sanitary Sewer at Port Neches; General Contractor
Mar-Len; Subcontractor -- Tony Tantillo; 10% complete as of
June 21, 1968; Approximate value -- $133,272
13. Floodwall and Levee at Port Arthur; General Contractor --
Midwest-Luhr; 1.8% complete as of June 24, 1968; Approximate
value -- $884,500
14. Corps of Engineer Levee Project; Prime Contractor -- Gulf
Coast Bridge (one segment) -- $140,000; Prime Contractor --
Mid-West/Luhr (another segment) -- $884,500; Prime Contractor
Jones & Cox (another segment)
The basic positions of the interested persons participating in
the proceeding are summarized below, although some additional
contentions are made and discussed where pertinent: [9]
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1. The petitioner contends that, in comparing other projects
with the contract work, not all highway projects in Jefferson
County should be considered projects of a character similar.
However, highway projects which involve the construction of
embankment and the compaction of embankment should be included for
comparison purposes. Additionally, the Office of the Solicitor was
not justified in using projects such as sanitary sewer line
construction which do not involve substantial amounts of earth
moving, embankment and compaction work.
2. The Office of the Solicitor argues that, in comparing other
projects to the contract work, heavy construction projects in the
county are similar because the subject contract work is for the
construction of a levee, and levee construction is characterized as
heavy construction. Highway construction projects are not
considered to resemble levee construction and therefore is not
considered similar.
3. The Building and Construction Trades Department, AFL-CIO,
the National Joint Heavy and Highway Construction Committee, AFL-
CIO, and the International Union of Operating Engineers, AFL-CIO,
assert that the segment of the levee which is covered by the
"contract work" in question is part of an overall planned flood control [10]
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[11] undertaking; namely, a system of levees to
surround the city of Port Arthur. Levees in Jefferson County are
considered heavy work and negotiated wage rates were paid on much
of the heavy work considered similar by the Solicitor.
These contentions, backed up as they are by concrete
illustrations of the kinds of projects the participants believe
should, or should not, be included in applying the similarity
standard pose an issue of importance in the administration of the
Davis-Bacon Act. The Act and its related legislation form a vital
and significant part of national labor policy aimed at protecting
achieved labor standards against erosion and against the depressing
effect of substandard competition to depress local labor conditions
on government or government financed construction subject to the
Act. However, the Act cannot be administered on an automatic basis
by the application of per se characterizations in close, difficult,
and contested cases. This is such a case.
The contract work described above is to be awarded by the
Corps of Engineers for technical, engineering, and developmental
considerations. There is nothing in the record suggesting that the
proposed work has been artificially separated on the basis of any
other considerations from the construction of the remainder of the
proposed Port Arthur levee system. The contract work has
characteristics which partake of heavy construction, such as earth
movement, embankment, and compaction. But it also has the
characteristics [11]
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[12] of the highway projects listed above,
which also involve substantial earth movement, embankment, and
compaction.
The test of the Davis-Bacon Act for purposes of project
comparison is whether the projects are of a character similar to
the contract work. At one end of the wage determination equation
is the term "projects of a character similar" and at the opposite
end is the term "contract work." A fair choice of judgment must be
made by the Office of the Solicitor as to whether the objectives of
the Davis-Bacon Act will be frustrated if the "contract work" in
question is considered similar to highway projects described above
in addition to the heavy projects considered by the Solicitor.
Here, we conclude that the Solicitor, in applying the
statutory test, should have considered as a factual matter in
determining Wage Decision AI-3376 all projects in Jefferson County
which are of a character similar to the contract work, which
include the timely highway projects and the listed heavy
projects, /FN4/ except the sanitary sewer line project (location
not noted) and the sanitary sewer at Port Neches. The latter two
projects should not have been considered similar by the Solicitor
because there is nothing indicating or suggesting that they involve
any substantial amount of earth moving, embankment, or compaction.
The petitioner questioned some additional [12]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
/FN4/ In response to specific questioning by the Board, none of the
interested persons participating in the proceeding has explained
any real distinctions between the "heavy" construction and the
"highway" construction, as those terms are applied in Jefferson
County. [12]
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[13] projects as well, such as those involving pile-driving and
wharf construction but the record is not sufficiently developed to
permit any conclusion that the Solicitor committed error as to
these.
Thus, the projects which the Solicitor should have considered
similar to the contract work are the following:
1. U.S. 90 West of Beaumont
2. Spur 380 in Beaumont
3. State Highway 73 in Port Arthur
4. U.S. 69, 96, and 287 South of Beaumont
5. U.S. 69, 96, and 287 in Beaumont
6. Piledriving for docks in Jefferson County
7. New Unit for Dupont Plant
8. Levee around tank farms at Gulf Oil
9. Port Arthur Levee (1 segment)
10. New Unit for Goodrich-Gulf at Port Neches
11. Site Work for Kansas City Railroad -- Predominantly
Railroad Embankment Work
12. Construction of Wharves, Transit Shed and Associated Work
at Port of Port Arthur
13. Re-build Reservoir at Texaco Plant
14. Site Work including levee for Lift Station
15. Board Roads, Levees, and Transmission Towers
16. Floodwall and Levee at Port Arthur
17. Corps of Engineer[s] Levee Project
The argument has been advanced that if the five highway
projects are to be considered in connection with this test levee,
subsequent "highway" construction in Jefferson County will have to
include in wage computations the rates for certain "heavy"
projects. We have no quarrel with this in principle, but leave for
the future any consideration of questions which may arise in its
application to any specific case in Jefferson County. [13]
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[14] The Board does not reach the issues presented by the
petitioner concerning the representativeness of the payroll periods
used in making the wage determination. The record on this matter
or related wage issues has not been fully developed, and,
therefore, we make no decision concerning them. We refer
interested persons to our decision in Carters Dam, WAB Decision No.
65-01, March 1, 1965, for some discussion on this point. The
payroll periods must be representative of the wages paid to the
classes of laborers and mechanics involved, though they may vary as
to individual classes of laborers and mechanics, so long as the
periods are representative.
SO ORDERED.
Oscar S. Smith, Chairman
Clarence D. Barker, Member
Stuart Rothman, Member [14]
