Associated General Contractors of Delaware, Inc., WAB No. 73-12 (WAB Au. 6, 1974)
CCASE:
GREATER WILMINGTON AIRPORT TAXIWAYS
DDATE:
19740806
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
Prevailing Wage Rates Applicable WAGE APPEALS BOARD
to Overlaying and Constructing
Certain Taxiways at the Greater Case No. 73-12
Wilmington Airport, Wilmington,
Delaware, under Contract No. Dated: August 6, 1974
ADAP-8-10-0006-05 and Wage
Decision No. AQ-2002, as Modified.
George & Lynch , Inc.
Associated General Contractors of
Delaware, Inc.
Delaware Contractors Association
PETITIONERS
APPEARANCES:
For Petitioners,
For George & Lynch, Inc., Robert S. Appleby
Sydney R. Chirlin, Esq.
H. James Conaway, Jr., Esq.
Attorneys for Petitioners
For Department of Public Works
New Castle County, Delaware
George M. Feist, Esq. [1]
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[2] For Federal Aviation Administration
Daniel Cassidy, Esquire
For Building and Construction Trades
Department, AFL-CIO
Thomas X. Dunn, Esquire
For International Union of Operating
Engineers, Local No. 542
Homer G. Dawson, Esquire
For International Union of Operating
Engineers, AFL-CIO
G. E. McCoy, Esquire
For Assistant Administrator, ESA
Wage and Hour Division
United States Department of Labor
George E. Rivers, Esquire
BEFORE: Oscar S. Smith, Chairman, Wage Appeals Board, and
Clarence D. Barker and Stuart Rothman, Members
DECISION AND ORDER
This is a proceeding under Order No. 32-63, as amended, of the
Secretary of Labor (29 F.R. 188, 761). The Petitioners, George and
Lynch, Inc., Associated General Contractors of Delaware, Inc~, and
Delaware Contractors' Association, filed a Petition for Review on
November 5, 1973, on the ground that [2]
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[3] the United States Department of Labor in specifying that wage
predetermination, Wage Decision No. AQ-2002, of July 1973, as modified,
would apply to the contract work, erroneously concluded "In bidding this
contract, HEAVY CONSTRUCTION WAGE RATES . . . will apply." The work in
question according to Petitioners is for overlaying Taxiways "A",
"B", "C", and "E" and the Construction of Taxiways O and S at the
Greater Wilmington Airport, Wilmington~ Delaware. /FN1/
The rates to be paid for the work under this contract have led
a peripatetic existence. On September 10, 1973 the New Castle
County Department of Public Works wrote to Local No. 542
International Union of Operating Engineers, AFL-CIO that the
contract covered by this Petition and all future similar work at
the Wilmington Greater Airport would be done at heavy construction
rates and not highway construction rates. /FN2/ In earlier years,
1968, 1969, 1970 and 1971, overlay [3]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
/FN1/ Petitioner's Exhibit A, which is the specification cover
sheet for the contract work mentions construction of Taxiways "O"
and "S". The specification itself is not included.
/FN2/ The IUOE exhibits the greatest, and possibly the sole, craft
interest in this case. The Wage Decision upon which this Petition
is based (AQ 2002) contains various wage rates identified [FN2
CONTINUED ON PAGE 3] as Building, as Heavy and as Highway. The use
of highway rates would result in lower rates only for the Operating
Engineers Craft not for the other crafts. In May 1974 by
negotiated agreement between area contractors - including two of
the petitioners in this case - and the local engineers union
highway rates and heavy rates for the engineers craft became
identical. The agreement was reflected on May 24th in a new Wage
Decision (AQ-2122) which superseded AQ-2029 which in turn had
superseded AQ-2002. [4][END FN 2]
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[4] work an existing runways and construction of terminal aprons
at this airport had been performed on prevailing highway rates.
The New Castle County Department of Public Works, apparently
reversing itself now takes the position that the work under this
contract should properly be classified as highway and not heavy
work. Mr. George Feist appeared personally at the hearing and
filed the following written statement:
I am here today representing New Castle County Department
of Public Works, and have been authorized to state its
position. The position of New Castle County Department
of Public Works is that highway rates apply to this
contract.
In the meantime, the United States Department of Labor, Division
of Wage Determinations by letter dated December 7, 1973
authoritatively advised the Federal Aviation Agency, that the
contract work in question should be classified and done at the
highway rates. Without the record showing whether the letter written [4]
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[5] by the Division of Wage Determinations was expressly
overruled, the Assistant Administrator of the Employment
Standards Administration by letter dated May 7, 1974 wrote the
Federal Aviation Agency, in part, as follows:
We have reviewed the wage rates generally applicable to
airport construction in Delaware and do not find
sufficient information available on which to reverse the
position of the local agency, the New Castle County
Public Works Department, that the heavy construction Wage
rates contained in our general wage determination,
AQ-2029, are applicable to the proposed project.
Only the FAA did not reverse its position, but this may be
that, discreetly, it avoided stating one.
With a surge of local interest, Petitioners have renewed their
request that this Board decide the question whether the contract
for overlaying taxiways and constructing two new taxiways to be let
at the Greater Wilmington Airport should carry the Davis-Bacon
heavy construction schedule or the Davis-Bacon highway construction
schedule. At the same time they made equally clear that they are
not protesting the fact that the Labor Department had found the two
wage schedules to be identical in hourly rates and basic fringes
for all [5]
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[6] classifications. The Board was told at the oral hearing
by Petitioners and the New Castle authorities, that so far
as the award of this job is concerned the advertised wage rates
whether called highway or heavy would be the same. /FN3/
Many real problems come before the Board which the Board seeks
to dispose of realistically. This case was argued to the Board on
everybody's supposition that all wage rates in the current ESA
highway and in the heavy schedules were identical within the
purview of the Labor Department's wage predetermination functions.
The Board asked this question of the parties and was told that this
was so although the petitioner thought there might be some
other differences, but not in the wage rates. The case was
submitted for consideration on that basis. Yet, on the same date
as the hearing, July 12, 1974, the ESA issued a Federal Register
modification increasing the heavy rate for carpenters [6]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
/FN3/ The Board does not have before it in this Petition any
question concerning the Labor Department's action in adopting and
issuing an adjusted highway schedule after May l, 1974.
(AQ-2122)[6]
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[7] from $9 to $9.60. No one told the Board about this,
undoubtedly because no one at the hearing knew about it. The New
Castle County authorities issued a modification to the bidding
documents on July 15, 1974, reflecting the ESA's 60 cents an hour
increase in the carpenter's heavy rate.
The Board perceives in this matter at least a four way
squabble between ESA, New Castle County authorities, FAA, and local
labor organizations with much cutting and filling between the time
the petition was first filed and the renewed interest in a Board
hearing. In that posture the case reached the Board without anyone
making clear what it was the Board should decide or why it should
decide it.
With a magpie's nest of loose ends in the case as submitted,
the Board was and is disinclined to issue a broad determination
when no reasonable explanation had been given why a determination
was necessary or even desirable. The result under the submitted
case would have been the same regardless of the choice whether the
work in question was to be classified heavy or highway. [7]
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[8] However, the submitted case, and the case as briefed by the
petitioner in an able post hearing statement, is not the same.
Petitioner brought to light the sixty cent differences in the
carpenters' rates and structured a substantial part of their
argument that the highway vs. heavy issue be now determined,
representing that carpenters would be used upon the contract work.
The question is what is the appropriate rate of pay for certain
classifications of labor and mechanics under the Davis-Bacon Act.
In a recent WAB Decision, Gananda Construction Corporation,
WAB 73-13, the Board noted for administering agencies and the
Department of Labor that Reorganization Plan 14 of 1950 /FN4/ is
not moribund or defunct. [8]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
/FN4/ Reorganization Plan No. 14 of 1950 (15 F.R. 3176, 64 Stat.
1267, 5 U.S.C. 133z note):
In order to assure coordination of administration and
consistency of enforcement of the labor standards
provision of each of the [foregoing and other enumerated]
Acts by the Federal agencies responsible for the
administration thereof, the Secretary of Labor shall
prescribe appropriate standards, regulations, and
procedures, which shall be observed by these agencies,
and cause to be made by the Department of Labor such
investigations, with respect to compliance with and
enforcement of such labor standards, as he deems
desirable, . . . . [8]
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[9] This case now presents the classical situation in which no
other agency will take the responsibility for determining the
appropriate wage rate to be applied to particular work in question.
In such cases over the years the Labor Department would take the
required leadership and responsibility and decide the matter. In
no other way can there result the required coordination of
administration and enforcement which Reorganization Plan 14
requires. Such a determination is what the Petitioner wants.
After considering the record in this matter as submitted by
ESA, all oral and written arguments including the petitioner's post
hearing statement, and being duly advised in the premises, the
Board issues the following order.
ORDER
Utilizing the Labor Department's standard procedures and
regulations, the ESA Administrator shall reassess its positions in
this matter and should determine and affirmatively advise all
interested agencies the appropriate wage [9]
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[10] rate for carpenters for the proposed contract work at the Greater
Wilmington Airport.
SO ORDERED.
(s) Oscar S. Smith, Chairman
(s) Col. Clarence D. Barker, Member
(s) Stuart Rothman, Member [10]
