Pittsburgh Advisory Committee on Housing and
Community Development, WAB No. 73-08 and 73-09 (WAB Nov. 12, 1973)
CCASE:
GLEN HAZEL HEIGHTS HOUSING PROJECT
DDATE:
19731112
TTEXT:
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[1] UNITED STATES OF AMERICA
UNITED STATES DEPARTMENT OF LABOR
WAGE APPEALS BOARD
WASHINGTON, D. C.
IN THE MATTER OF
WAGE APPEALS BOARD
The Prevailing Wage Rates Consolidated
Applicable to the Construction Case Nos. 73-08
of the Glen Hazel Heights Housing and 73-09
Project, Pittsburgh, Allegheny
County, Pennsylvania. Dated: November 12, 1973
Pittsburgh Advisory Committee on Housing and
Community Development and the Housing Authority
of the City of Pittsburgh, Pennsylvania,
PETITIONERS
APPEARANCES:
J. F. Cunningham, Esquire,
Washington, D.C.
for the Petitioners Pittsburgh
Advisory Committee on Housing
and Community Development;
Mr. David O'Loughlin,
Mayor's Office, Pittsburgh, Representing
Mr. David B. Washington,
General Counsel, Housing Authority of the
City of Pittsburgh;
George E. Rivers, Esquire,
Counsel for Construction Wage Standards,
Office of the Solicitor and Counsel for
the Assistant Administrator, W&H
United States Department of Labor [1]
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[2] Thomas X. Dunn, Esquire,
Associate General Counsel for the
Building & Construction Trades
Department, AFL-CIO and for the
International Brotherhood of
Electrical Workers,
Washington, D. C.;
Stanford A. Segal, Esquire,
Pittsburgh, Pennsylvania,
Counsel for the Pittsburgh Building
Trades Council
BEFORE: Oscar S. Smith, Chairman,
Wage Appeals Board; and
Stuart Rothman and
Clarence D. Barker, Members
DECISION AND ORDER
This appeal involves a request to review a wage
predetermination issued pursuant to the United States Housing Act
of 1937, as amended, the prevailing wage provisions of which
require such determination to be made by the Secretary of Labor in
accordance with the Davis-Bacon Act. The Housing Authority of the
City of Pittsburgh and the Pittsburgh Advisory Committee on Housing
and Community Development petitioned for review of Wage Decision
No. 73-PA-24 issued by the Employment Standards Administration,
United States Department of Labor (ESA), dated January 23, 1973 in
connection with an application of Petitioner Housing Authority for
a project known as Glen Hazel Heights, in Pittsburgh, Allegheny
County, Pennsylvania. /FN1/ [2]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
/FN1/ This case may be cited as the Glen Hazel Heights Housing
Project, Pittsburgh, Pennsylvania, WAB 73--8 & -09. [2]
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[3] The project calls for 500 single family townhouses, four
stories or under, consisting of 195 public housing units and 305
units to be sold to private purchasers. The aim of the project is
to offer intermixed low and moderate income public and private
housing at reasonable rental and sales prices. The Wage Decision
No. 73-PA-24 of January 23, 1973 is itself obsolete since the
project has not been undertaken. The wage predetermination expired
May 22, 1973. The basic question which the Petitioners request
this Board to decide is therefore whether the criteria used by ESA
and whether the manner and means by which the ESA surveyed,
assessed and applied the relevant criteria to reach Wage Decision
No. 73-PA-24 are in conformity with the applicable rules and
regulations of the Department of Labor and the basic policies and
objectives of the Davis-Bacon Act. The petitioners represent that
the question presented [3]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
/FN2/ APPLICABLE STATUTES AND REGULATIONS
This appeal involves a request to review a wage determination issued
pursuant to the United States Housing Act of 1937, as amended, the
prevailing wage provisions of which require such determination to be made
by the Secretary of Labor in accordance with the Davis-Bacon Act. The
pertinent provisions of these statutes read as follows:
Sec. 16, United States Housing Act of 1937, as amended, 42
U.S.C.A. 1416: In order to protect labor standards --
* * *
(2) Any contract for loans, annual contributions, capital grants
sale, or lease pursuant to this Act shall . . . contain a
provision that not less [FN2 CONTINUED ON PAGE 4] than the wages
prevailing in the locality, as predetermined by the Secretary of
Labor pursuant to the Davis-Bacon Act (49 Stat. 1011), shall b
paid to laborers and mechanics employed in the development of
the project involved . . . and that each such laborer or
mechanic shall receive compensation at a rate not less than one
and one-half times his basic rate of pay for all hours worked in
any workweek in excess of eight hours in any workday or forty
hours in the workweek . . .
* * *
Sec. 1003, Demonstration Cities and Metropolitan Development Act
of 1966, Public Law 89-754, approved Nov. 3, 1966, 80 Stat.
1255, 1284, extended the application of the prevailing wage
provisions of the Davis-Bacon Act to all laborers and mechanics
employed in the construction of privately built housing
projects, to be used as public housing projects.
* * *
The wage determination provisions of Section 1 of the Davis-Bacon Act
(40 U.S.C. 276a) provide for[:]
. . . minimum wages to be paid various classes of laborers and
mechanics which shall be based upon the wages that will be
determined by the Secretary of Labor to be prevailing for the
corresponding classes of laborers and mechanics employed on [FN2
CONTINUED ON PAGE 5] [*] projects of a character similar to the
contract work [*] in the city, town, village or other civil
subdivision of the State in which the work is to be
performed. . .
* * *
The pertinent provisions of the Department's Regulations (29
CFR, Part 1) as they relate to this matter read as follows:
Sec. 1.2 Definitions.
(b) The term "area" in determining wage rates under the
Davis-Bacon Act and the prevailing wage provisions of the
other statutes listed in Appendix A shall mean the city,
town, village, or other civil subdivision of the State in
which the work is to be performed. . .
Sec. 1.8 Scope of consideration.
(a) In making a wage determination projects completed more
than one year prior to the date of request for the
determination may, [*] but need not [*] be considered.
[*](Emphasis added.)[*]
(b) If there has been no similar construction within the area in
the past year, wage rates paid on the nearest similar
construction may be considered.
Sec. 1.16 Review by Wage Appeals Board.
Any interested person may appeal to the Wage Appeals Board
for a review of a determination of wage rates made under
this part, or any findings and conclusions made on the
record of any hearings held under [sec] 1.3(c). Any such
appeal may, in the discretion of the Wage Appeals Board, be
received, accepted, and decided in accordance with the
provisions of 29 CFR Part 7 and such other procedures as the
Board may establish. [END FN2]
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[4] raises questions of fundamental importance to the future of the Glen
Hazel Heights and similar type projects in the Pittsburgh area; that is,
whether upon undertaking any future survey for purposes of [4]
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[5] assessment and appraisal of the appropriate wage rates for this project
or similar projects, the ESA's modus operandi will be valid if it does no
more or less than what it did in issuing Wage Decision No. 73-PA-24. [5]
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[6] Although Wage Decision No. 73-PA-24 is obsolete, the Wage Appeals
Board has consented to review this case to resolve for the future some
lingering doubts concerning ESA's methods which so many public and civic
agencies in Pittsburgh have opposed. /FN3/
There was an ESA wage predetermination survey; in fact there were four
efforts toward the accumulation of appropriate wage data in February 1972;
in June 1972; late in 1972; and early in 1973, to get a reflection of
prevailing wage rates in Allegheny County for this type of project with the
hope, as the government put the matter, that all parties having an interest
would submit their evidence as to the rates prevailing for low-rise
residential construction in Allegheny County. As a result of what the
government says its four efforts to get wage predetermination data
produced, Wage Decision No. 73-PA-24 based upon data for 71 housing
projects in Allegheny County was issued. Still unsatisfied, local housing
and civic groups requested a further and more formal evidentiary hearing.
Such hearing was conducted in March, 1973 on behalf of the Assistant
Administrator, ESA before a Department of Labor administrative law
judge. /FN4/ On August 2, 1973 the ESA Assistant [6]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
/FN3/ The Housing Strike Force of the Health and Welfare Association of
Allegheny County; the Pittsburgh Advisory Committee on Housing and
Community Development; the Builders Association of Metropolitan Pittsburgh;
the Urban Renewal Agency of the City of Pittsburgh, the Office of the
Housing Coordinator of the City of Pittsburgh; and the Pittsburgh Housing
Authority.
/FN4/ The administrative law judge upon conclusion of the hearing, in
consideration of the views of the interested parties and the testimony of
[FN4 CONTINUED ON PAGE 6] the witnesses, recommended that the Employment
Standards Administration's (ESA's) wage determination (73-PA-24) of January
24, 1973 applicable to the Glen Hazel Heights project be sustained. [END
FN4]
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[7] Administrator adopted the recommendation of the administrative law
judge and affirmed his earlier wage determination in 73-PA-24.
The contentions of the Petitioners before the Wage Appeals Board
remain[] substantially the same contentions made before the ESA:
1. The period of time used by the ESA, namely, projects
completed within the three-month period back of January 23, 1973
was too short a period of time. A reasonable time would have
been up to a year, and such would have been more consonant with
the Department's regulations.
2. Projects were submitted by interested local groups
encompassing low-rise housing outside of Allegheny County. The
ESA erred in excluding this kind of information.
3. Within the 71 housing projects surveyed, two were high-rise
residential construction and there may have been other types of
construction other than housing under four stories which ESA
erroneously included. /FN5/
4. While it may not be improper to include other housing
projects Federally-financed and hence subject to Davis-Bacon
wage predeterminations that are similar to the instant project,
these projects can be accorded too much weight by the Labor
Department inasmuch as too many of them [7]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
/FN5/ It was conceded at the hearing before the Wage Appeals Board that ESA
had in fact excluded all high-rise residential projects that may have
gotten into the 71 projects data. [7]
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[8] may override the force of other factors emerging and operating
in the community. /FN6/
5. The Housing Authority and other local and civic groups did
not have a clear understanding of the requirements of the
applicable regulations of the Department of Labor and the manner
and means in which they would be applied and the surveys
conducted.
* * *
The question boils down to whether ESA should have expanded the
time period of the wage data survey beyond the three-months period prior
to the predetermination to get a proper fix on "current construction",
and whether it should have restricted the scope of the housing surveyed
to exclude some types of housing construction and to have included more
of a sampling of other types of housing. Petitioners have never made clear
what was wrong with the types of housing surveyed except that they are
unhappy with the result and appear to intimate some kind of manipulation
of or misemphasis placed upon the data collected by the
ESA. [8]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
/FN6/ This contention will not be discussed at length in this decision.
It will be summarily disposed of as follows: In the 40 year administration
of the Davis-Bacon Act it has never been either seriously advanced or
seriously considered that projects undertaken under the Davis-Bacon Act
and hence themselves based upon the current prevailing wage
predetermination at the time can or should be excluded when developing
other Davis-Bacon wage predeterminations. There can and have been
situations where the Davis-Bacon predetermination issued for a current
project was found after appropriate proceedings to have been erroneously
derived. In such limited cases, ESA was instructed not to use such
erroneous predeterminations in future surveys. Where there is no
substantial showing that earlier Davis-Bacon wage predeterminations were
in error at the time when made, there is no justification for excluding
these projects in future predeterminations. [8]
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[9] Upon an examination of the record before the Board and the written
briefs and oral arguments presented, the Board concludes that the manner,
means and standards used by ESA were in conformity with the provisions of
the regulations. We do not believe that the factual case made out by the
Petitioners supports the serious deficiencies attributed to the survey or
that as a matter of judgment and discretion within the operation of
Regulations, Part 7 (29 C.F.R. Part 7), this Board on what the Petitioners
have had to say should propose some relaxations of the literal requirements
of Regulations, Part 1. However, in the event that another survey is
occasioned by an application for a wage predetermination for this yet to
be undertaken project, ESA should notify the City of Pittsburgh and the
local Housing Authority in advance of the manner, means and standards that
it will apply in the survey and discuss them with these agencies to
preclude any possible misunderstandings.
High-rise residential construction (4-stories or over) was excluded
from the 1972-1973 ESA surveys. The reason for its exclusion remains
clouded, with the parties assigning different reasons. The Petitioners
take it as a matter of course that high-rise residential construction shall
be excluded from any survey, anywhere, at any time involving housing under
four stories. In the absence of substantial identification of established
practice to that effect the Wage Appeals Board does not take such matter
for granted. [9]
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[10] ESA did in fact exclude high-rise residential construction and
apparently all other general building construction as well. The
exclusion of high-rise residential construction from the survey brought no
protest from anyone. None was raised in the oral discussion October 17th
before this Board. Counsel for ESA stated that its exclusion in no way
affected the survey results. At the same time, however, the Assistant
Administrator, ESA, by the adoption of a recommendation of the
administrative law judge who conducted the March 1973 evidentiary hearing
(See August 2, 1973 ESA Decision) concluded that justification did not
exist in Allegheny County for exclusion from the survey of general building
construction, including high-rise residential construction. Fortunately,
on this highly muddled and inconsistent state of affairs in which the
Assistant Administrator of ESA adopted a recommendation that went beyond
an evidentiary report that such construction is not to be excluded, yet on
the contrary did exclude it as an evidentiary matter, we do not need to
reach this question at this time inasmuch as there is not sufficient basis
in the case as presented by both the Petitioners [10]
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[11] and Counsel for ESA for finding that the ESA survey for Wage
Decision No. 73-PA-24 or its results should be overturned.
ORDER:
The Petition is denied.
Oscar S. Smith, Chairman
Stuart Rothman, Member
Clarence D. Barker, Member [11]
