CCASE:
THREE CONST. V. ATLANTA TRANSIT AUTHORITY
DDATE:
19751016
TTEXT:
~1
[1] UNITED STATES OF AMERICA
DEPARTMENT OF LABOR
DECISIONS AND ORDERS OF THE WAGE APPEALS BOARD
IN THE MATTER OF
The prevailing wage rates
applicable to three construction WAGE APPEALS BOARD
projects of the Metropolitan Rapid CASE NO. 75-05
Transit Authority, Wage Decisions SUPPLEMENTAL DECISION
Nos. 75-GA-159, 75-GA-160, and Dated: October 16, 1975
75-GA-161
Metropolitan Atlanta Rapid
Transit Authority
Petitioner
Georgia Highway Contractor's
Association, Inc.
Intervenor
North Georgia Building and
Construction Trades Council
Intervenor at the Atlanta
Hearing Upon Reconsideration
BEFORE: Oscar S. Smith, Chairman, Wage Appeals Board
and Stuart Rothman and Clarence D. Barker, Members [1]
~2
[2] The hearing on reconsideration was held in Atlanta,
Georgia, on September 30, 1975, in Room 772, 1375 Peachtree Street,
N.E. The North Georgia Building and Construction Trades Council
was permitted to intervene at that time. Joseph Jacobs, Esq.
appeared on behalf of the North Georgia Building and Construction
Trades Council.
SUPPLEMENTAL DECISION AND ORDER AFTER HEARING UPON
MOTIONS FOR RECONSIDERATION BY THE U.S. DEPARTMENT OF
LABOR AND THE BUILDING AND CONSTRUCTION TRADES
DEPARTMENT, AFL-CIO
Our first opinion in this case, issued August 25, 1975,
directed the Employment Standards Administration (herein ESA)
United States Department of Labor to consider three projects, CE
540, 173 and 330,1/ of the planned MARTA Subway and Rapid Rail
Transit System (herein "planned MARTA system") on the basis of the
individual characteristics of each project for comparison with
other "projects of a character similar"to the contract work under
the Davis-Bacon Act criteria. The Board also [2]
??????????????????
/FN1/ The bid documents with drawings and specifications had been
prepared. Advertisement was said to be imminent. CE 173 has been
consolidated with other segments. A new request for wage
determination has been filed with ESA for the enlarged segment and
this is not now before the Board. [2]
~3
[3] directed ESA to exclude wage rates paid on EPA financed water
treatment and sewage disposal plants in identifying projects (such
as building, heavy, highway or other categories) for the required
similarity comparisons. There were a number of related directions
to ESA dealing with other projects such as tracklaying and local
water and sewer lines whose similarities to the contract work had
been questioned. /FN2/
The challenge to the Board's two fundamental conclusions can
be summed up as follows. BTD, relying greatly upon what Counsel
for ESA had repeatedly stated at the original hearing, contended in
its brief and orally upon reconsideration:
The most important issue in this case is whether the
"planned" MARTA railway system should be looked at in its
entirety, or broken into segments, for the purpose of
making wage determinations." * * * In the [3]
??????????????????
/FN2/ The Board in the original decision was not and is not now,
oblivious to the fact that the three projects are planned as a part
of MARTA's overall undertaking and are affected by the planning,
financing, architectural engineering and developmental
considerations of the entire system and that in time all segment
projects will be tied together into one operative system, but this
does not vary the conclusions reached. [3]
~4
[4] judgment of the ESA, the entire project for the purpose
of wage determination was considered "an" appropriate
method to satisfy the "objectives of the Act." * * *
This reversal of the Board of a finding by the ESA that
the entire project should be considered as a whole is
totally opposed to the purposes of the Act.
Both the Labor Department and BTD with equal intenseness
contend that there are a number of water treatment and sewage
disposal plants underway or completed since 1974 that partially but
not wholly fall within the "heavy" category of work for wage
predetermination purposes.
It was apparently the ESA position that in some selective but
undisclosed way, perhaps by a percentage of a project by volume of
work or a percentage of the number of laborers and mechanics
employed, portions of these water treatment and sewage disposal
plants should be used as the primary base for wage
predeterminations applicable to the entire MARTA system. MARTA,
which is not a unitary project should be considered as an
"entirety" while the water treatment and sewage disposal plants,
which [4]
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[5] are unitary projects, should not be. For the reasons
discussed later and in the August 25 decision the ESA's unique
approach to the division of work on a single water treatment or
sewage disposal plant is in error and to the knowledge of the Board
without precedent.
The challenge to the Board's decision from two responsible
sources amid fervid claims that the Board has become hopelessly
lost in a sea of misapplication of its own and Labor Department
rulings led the Board to journey to Atlanta for a look-see of the
factual situation and to reexamine its own opinion and the parties'
positions on the local scene. The Board members visited the sites
of the proposed work. They looked at at least two sewage disposal
and water treatment plants, at a cut and cover flume project at the
Atlanta Airport to divert the Flint River and at one bridge under
construction on a federal aid highway program.
The Board was accompanied by representatives of the Labor
Department, MARTA, the Georgia Highway Contractors Association and
the United Brotherhood of Carpenters and Joiners of America. All
parties were invited to participate in the tour. Arrangements to
accommodate them were made. [5]
~6
[6] After the tour there was a public hearing requested by the
Labor Department and the BTD, which was held from approximately
2:00 p.m. to 7:45 p.m. Statements were made on behalf of ESA by
Counsel for ESA and by an ESA official. Additional statements were
made for the Building and Construction Trades Council (herein North
Georgia BTC), for the International Brotherhood of Carpenters and
Joiners of America, for the International Brotherhood of Electrical
Workers, for the International Association of Bridge, Structural
and Ornamental Iron Workers, for MARTA and for the Georgia Highway
Contractors Association. Little factual data was submitted by any
side which would enable the Board to take new or different bearings
if it were wrong in the initial decision. /FN3/ [6]
??????????????????
/FN3/ The Ca[rp]enters representative presented additional factual
data on the percentage breakdown of "building" construction at one
of the sewage disposal plants. The split as reported by the
project manager was 25% "building" and 75% so-called "heavy." [6]
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[7] BACKGROUND
On November 1, 1974, ESA published in the Federal Register its
decision AR-4051, a five county (Clayton, Cobb, Dekalb, Fulton and
Gwinett) wage predetermination for "heavy construction". The basic
hourly rates were as follows:
Counties: Clayton, Cobb, Dekalb, Basic Hourly
Fulton, & Gwinnett Rates
Bricklayers 4.50
Carpenters 5.23
Cement masons 4.65
Electricians 9.55 *
Ironworkers 6.40
Laborers:
Unskilled 3.32
Pipelayers 4.06
Line Construction:
Lineman 7.11
Groundman 3.84
Painters 5.00
Power Equipment Operators
Asphalt Distributor Opr. 5.10
Backhoe 5.32
Bulldozer 4.48
Cranes, Derricks, Draglines 7.85 *
Loader 4.15
Mechanics 5.00
Motor Graders, Motor Patrol 4.41
Oiler 5.58 *
Scraper 4.00
Trenching Machines 5.69
Truck Drivers to 2.5 tons 3.56
Truck Drivers over 2.5 tons 3.75
[* Plus fringes.] [7]
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[8] This schedule would have been used for MARTA's three
segments, CE 540, 173 and 330, had the North Georgia BTC not
protested its application to MARTA work. It contended that there
had been a fundamental change in the structure of the construction
industry in the Atlanta area. "Heavy" work formerly performed at
non-negotiated rates was now predominately performed under
contracts applicable to building and commercial work at negotiated
rates. In support of this position, it directed ESA's attention to
a substantial number of water treatment and sewage disposal plants
in Fulton and Dekalb. /FN4/ These projects in the past had been
built at non-negotiated rates, but predominately if not
exclusively, now were being performed under the negotiated building
and commercial schedules. The North Georgia BTC contended that
although these projects were now being built at negotiated building
rates, nonetheless they were "heavy" construction projects. The
MARTA subway and rapid rail transit system should similarly be
characterized as "heavy" category work in all its parts (here the
work on the three segments). These segments therefore should be
built at the wage rates paid on the water treatment and sewage
disposal plants or rates close to them. [8]
??????????????????
/FN4/ These projects are sometimes referred to herein as "the EPA
projects." [8]
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[9] ESA accepted this new theory but applied it in an unusual
way. It separated the work on these EPA projects into part
"building" and part "heavy." In its survey it used some additional
"heavy" projects. It recalled AR-4051, the area-wide
determination. It issued three separate, but identical, project
wage predeterminations for each of the three segments 75-GA-110,
109, and 98 on a two-county basis, as follows:
HEAVY CONSTRUCTION 44-60-GA-2B
Basic Hourly Rates
Carpenters 7.95 *
Cement Masons 6.10
Electricians 9.55 *
Ironworkers:
Structural 7.90 *
Reinforcing 7.90 *
Laborers:
Unskilled 3.98
Air tool operator 5.52 *
Piledrivermen 8.25 *
Plumbers and Pipefitters 9.20 *
Truck Drivers:
up to and including 2.5 tons 3.56
over 2.5 tons 3.75
POWER EQUIPMENT OPERATORS:
Backhoe 5.53
Bulldozer 7.65 *
Crane 8.00 *
Loader 4.24
Oiler 5.58 *
Scraper 6.80
Mechanic 5.22 [9]
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[10] Apparently MARTA asked ESA to relate the survey back three
additional months to October 1974. The result in ESA's final wage
predetermination came even closer to the rates prevailing on
building construction in the area. Three new and identical wage
determinations, 75-GA-159, 160 and 161 which are the ones under
attack in this proceeding were issued by ESA May 12, 1975 as
follows:
44-60-GA-2C
Basic Fringe Benefit Payments
Hourly
Rates H&W Pensions Vacation App.Ta
Bricklayers 8.35 .35 .40 .05
Carpenters 7.95 .40 .45 .02
Cement Masons 7.25 .35 .55
Electricians 9.55 6% 7%+1% 1/2%
Ironworkers:
Structural 7.90 .40 .47 .07
Reinforcing 7.90 .40 .47 .07
Laborers:
Unskilled 5.20 .20 .20 .05
Air tool operator 5.42 .20 .20 .05
Painters 7.70 .40 .40 .04
Piledrivermen 8.25 .40 .45 .02
Plumbers & Pipe-
fitters 8.95 .35 .50 .09
Truck Drivers 3.50
POWER EQUIPMENT OPERATORS
Backhoe 6.73
Bulldozers 7.65 .35 .20 .07
Crane 8.00 .35 .20 .07
Loader 7.65 .35 .20 .07
Mechanic 8.00 .35 .20 .07
Oiler 5.58 .35 .20 .07
Scraper 7.65 .35 .20 .07[10]
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[11] THE WATER TREATMENT AND SEWAGE
DISPOSAL PLANTS ISSUE
Because of current economic conditions major public works and
private industrial construction found in an expanding economy have
dried to a trickle in many areas. It is perhaps ironic that much
major public works in the United States is held up by EPA controls
while at the same time the limited number of projects that are
going ahead in the Atlanta area are EPA financed water treatment
and sewage disposal plants. There is also federal aid highway work
which plays a part in the positions of the parties. But when the
survey leading to the contested schedule was made the major
construction projects outside of commercial buildings found in the
Atlanta area appear to be the E[P]A projects, and some
miscellaneous projects including railroad bridges and retaining
walls.
EPA receives or selects from the Federal Register two
schedules, one for building construction and one for heavy
construction. It uses both. So far as can be determined from
statements in this case, EPA in the Atlanta area does not through
prebidding conferences or otherwise tell bidders specifically which
rates apply to certain parts of a project and which do not. Nor
has EPA, we are told, policed [11]
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[12] appropriateness of wage rates paid so long as the minimums of
either schedule were met.
The Board in its Atlanta visit looked at the physical,
architectural and engineering and industrial processes inherent in
a typical sewage disposal plant. It adheres to its initial
conclusion that these projects should be treated as "building"
projects for wage predetermination purposes in this case.
It is significant that as many times as the Board has asked
ESA to tell it explicitly how and what it concluded were the wage
rates paid for "building" and for "heavy" work by the numbers; that
is, how many employees were engaged on the "heavy" side of the work
and how many were engaged on the "building" side of these sewage
treatment plants, just as many times ESA has been unable or
unwilling to do so.
Disputes over Davis-Bacon wage schedules between contracting
agencies and various contractors' groups can involve fierce
economic competition determinative of which groups of employees get
jobs. In all cases, seeking [12]
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[13] fairness under Davis-Bacon principles tested by experience, the Board
calls them as it sees them. In this case it has been necessary to go see
what was being done because of erroneous reasons in support of both
erroneous and correct positions.
1. ESA did not limit its survey to the EPA projects
alone. It included undisputed and some ostensible
"heavy" projects such as the cut and cover flume at the
Atlanta Airport, railroad bridges, retaining walls and
similar structures. The Board perceives that under the
ESA contention that enough of the EPA projects should be
considered heavy work to tilt the scales on the new heavy
rate schedules, all heavy work in the Atlanta area
henceforth will be done at building or near building
rates. If hardly intended, it is a clear and
unmistak[]able result of what ESA has done. It may come
as a considerable surprise to FAA and the Atlanta Airport
authority, to the State of Georgia and to others that
because of the EPA projects all cut and cover flume work
and other heavy work at the airport and all other heavy
work elsewhere would now be done at building rates. [13]
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[14] 2. In its post hearing statement, the North Georgia BTC
makes the point that there is only one recognized work
classification for substantially all of the crafts in the
negotiated sector of the industry and that is the
building and commercial schedule. The Board is fortified
by this in its conclusion that the water treatment and
sewage disposal plants must stay in the building category
as far as the wage determinations in this proceeding are
concerned. There is no negotiated "heavy" schedule, nor
can it be claimed that all heavy work in the Atlanta area
or a predominate amount has been done at the building
rates, except for the EPA projects. The Board does not
perceive that because water treatment and sewage disposal
plants are performed at the building and commercial wage
rates, the construction industry in Atlanta has concluded
there is no such classification as heavy work in the
Atlanta area and that work of all kinds that is not
highway work is performed at building and commercial wage
rates. Rather the industry recognizes the "building"
nature of a project such as a water treatment and sewage
disposal plant. [14]
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[15] 3. It has been a strong contention of the BTD that
since in its view, the distinction between building
construction and heavy construction on water treatment
and sewage disposal plants are divided by a fine thread,
the Board in a review proce[e]ding should accord[] ESA
the benefit of the doubt. The Board does not agree that
the dividing line between building and heavy on such
projects is a close question. There is no dividing line
on these projects each of which must be awarded as a
unitary project because of the inseparable nature of the
work. Since the building work cannot be separated from
the heavy work, such a distinction as far as this wage
redetermination survey is concerned, cannot be made.
The narrow question the Board has to decide is whether under
the circumstances, water treatment and sewage disposal plants
should be in or out of the ESA survey. The Board adheres to its
initial conclusion that they should be excluded. [15]
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THE PLANNED MARTA SYSTEM
AS A SINGLE ENTITY ISSUE
The Labor Department's position at the initial hearing was
structured to the extreme upon the foundation that ESA had
considered each of the three segments to be as integrated parts of
the whole planned Marta program which was to be considered an
"entity" for all wage predetermination classification purposes,
i.e., "one project - one entity - one 'heavy' wage schedule."
The North Georgia BTC and the BTD to the same extreme persisted
in this view at the September hearing in Atlanta. Counsel for ESA,
perhaps being advised of our initial decision, but more likely by
further consultations with ESA, apparently abandoned this position
prior to the second hearing. Counsel for ESA stated in opening
statement that in the future the ESA would be issuing building rate
schedules, and heavy rate schedules, and even some highway rate
schedules for Marta work. The significance of this was cleared up
later by a representative of ESA who made a basic statement for
ESA.
In our August 25, 1975, decision we expressed concern at the
Department's frightful gamble, for if it turned out that water
treatment and sewage disposal plants in [16]
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[17] Atlanta were not pertinent for wage predetermination purposes to
these segments of an electrified railroad then the Department was arguing
for the application of the low rates of the open shop contractors to the
Marta system and all its parts: to the stations, to all underground
work in the downtown nucleus of the subway system, to all aerial
work in built up areas, and to projects in many other places. This
has been fully discussed in our initial decision. With the loss of
the portion of the water treatment and sewage disposal plant
wage rates relied on as the base upon which to launch the "one
entity -- one heavy wage schedule," the North Georgia BTC should
now be quite willing to abandon such claim.
The North Georgia BTC and supporters have been almost totally
occupied with this "one entity" concept and have quite belabored
the Board for not agreeing that this is the way ESA as well as this
Board had always done it. The Board was well aware, however, that
this is not necessarily the way it has been done. We are reminded
with respect to the heavy attack on the Board's August 25th
decision, of the naval vessels that came out with all guns blazing
and [17]
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[18] Withstood the storm when the seas were rough,
Yet in a sunny hour fell off
Like ships that have gone down at sea
When heaven was all tranquility. /FN5/
For the ESA representative at the September 30 hearing,
speaking for ESA and for himself, stated unmistakably,
unequivocally, and with an authority based upon years of respect in
Davis-Bacon work, that ESA did no such thing as had been claimed
for it. It did not at all consider these three segments as parts
of the planned Marta system as an "entity." Nor did it consider
each of these segments as the same thing as the planned Marta
system "considered as a whole." ESA considered each of these three
segment projects as a "free-standing" project to be compared with
other projects on the basis of their own individual project
characteristics. In this the Board commendably agrees. And it is
all for the good. It clears the atmosphere of a web of faulty
inferences. It permits the Board to get on with some refinements
in the application of the basic principles stated in the August 25,
1975 decision, and it permits the Board to consider each project
before it separately and to dispose of each one separately. [18]
??????????????????
/FN5/ Author unknown to the Board. [18]
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[19] MARTA PROJECT
CE 540
EARTHWORK AND STRUCTURES
ANDERSON AVENUE TO FAIRFIELD PLACE
This project is described in Marta's brief as the construction
of a 4,000 foot of rapid transit-at-grade line section in Fulton
County at a cost of between two and three million dollars. It
includes site clearance, excavation and embankment, and fencing and
seeding the site at completion of the project. The contractor does
not include any track work.
More specifically, the specifications include removing catch
basins, pipe and fences, concreting an 18 inch culvert under Howard
Street, relocating a highway sign on I-20 West; clearing, grubbing
and disposing of vegetation, etc., within the indicated right of
way, rough grading, excavating for concrete structures, trenching
for drainage pipe, providing excavation support system, fill for
embankments and slopes, and backfill for trenches and retaining
walls, providing storm drains and subsurface drains, providing
precast[] concrete manholes, cast in place concrete manholes,
manhole foundations, dissipator and dumped rip rap, fencing,
subballast, seeding and sodding, providing markers, modifying a
sanitary [19]
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[20] sewer manhole at Howard Street, exposing
supporting casing and backfilling a six-inch cast iron water main
at Howard Street and other water mains similarly, providing
concrete reinforcement. Under "electrical work" providing conduit,
duct banks, and pull boxes.
MARTA PROJECT
CE-330
EAST LAKE DRIVE TO WEST TRIN[I]TY PLACE
This project is described in MARTA's brief as follows:
Contract CE-330 (75-GA-160) involves the construction of
4,000 feet of rapid transit line, 1,100 feet at grade and
2,900 feet of double box concrete subway section. It
includes site clearance and grubbing; cut and cover
excavation; decking over of Howard Street and Adair
Street for street traffic; protection and relocation of
existing sanitary sewer and water lines and installation [20]
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[21] of new storm water system with pertinent
drainage structures; construction of concrete double box
subway section, 18 feet high and 30 feet wide with
center wall and 18-inch thick exterior walls; backfilling
over the box, grading, seeding and fencing the site; and
restoration and paving of streets, curbs and sidewalks.
Without elaboration upon the requirements of the
specifications [] for the work, the 2900 foot cut and cover subway
portion are detailed in the specifications and include sections
dealing with steel doors and frames, finish hardware, fire
protection system [,] ventilation system, basic electrical
materials and methods, distribution equipment, and grounding. [21]
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[22] THE BOARD SEPARATES THE CONSIDERATION OF THE
APPLICABLE WAGE PREDETERMINATION FOR EACH
PROJECT CE-540 AND CE-330
It is the understanding of the Board that Project CE-540 has
been advertised for bids, MARTA is much concerned about an award at
an early time going so far as to tinker with basic Davis-Bacon
administration requirements. It suggested a set of wage rates of
its own that bidders could use for bid calculations, subject to
numerous conditions and contingencies.
The Board has concluded under the circumstances to dispose
forthwith of the wage rate issue pertaining to CE-540 while giving
further consideration to the wage rate issue concerning CE-330. No
inference of any kind as to the disposition of the wage issue in
CE-330 would be justified. [22]
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[23] AN ADJUSTMENT OF THE BOARD'S AUGUST 14
DECISION IN THE METHOD OF MAKING THE WAGE
PREDETERMINATION SURVEY AND CALCULATING THE
APPROPRIATE WAGE RATES TO BE PAID ON PROJECT,
CE 540
ESA claims that the Board strayed from the regular method by
which the ESA conducts its surveys in its instruction of August 25,
1975. /FN6/ This is not the case, but the Board seeks as plain and
practical an approach under routine survey methods insofar as such
methods will achieve a practical result and will be based upon a
representative number of employees in each craft and a
representative number of projects over which there is no major
remaining dispute as to similarity with project CE 540. [23]
??????????????????
/FN6/ ESA's position on reconsideration appears to be that when
Congress enacted the Davis-Bacon Act, it was interested only that
projects be considered to be building, heavy, or highway for
project similarity purposes. In pursuance thereof, this is what
ESA says it now does. The Congress could have had no such
schematic arrangement in mind. First, highways did not much enter
into the picture in the thirties. They did not come to the fore
until the Federal Aid Highway legislation of the fifties. In the
thirties, the "heavy" work category as something different from
building and commercial projects was hardly thought of.
As a working rule under mass production methods ESA has
justification for producing the [] three schedules, building, heavy
and highway in normal operations. But in the case of a challenge,
the test has always been an examination of project characteristics
project by project within the structure of the construction
industry in the locality. In Davis-Bacon Act administration,
substance, not labels, must in the end be the
test. [23]
~24
[24] 1. ESA is firm in its position that the work in CE 540 is
within the category of work it calls "heavy." The Board has no
quarrel with ESA's determination that this project should be
considered "heavy" work for wage determination purposes.
2. CE 540 is work in one segment of a planned electrified
railway system. Projects most like it would be similar work on
other rapid rail transit systems in the Atlanta area. It is the
nature of the problem before the Board that there is none. That
being the situation, the types of projects more closely related to
CE 540 would appear to be other railroad projects, related railroad
work and related basic heavy work. This would include, by way of
example, track relocation, new road bed construction, new spur
construction and connections, railroad bridges and underpasses,
etc., whether or not such structures serve both highway and
railroad needs.
3. A careful but expedited recheck of the survey used for
wage determination 75-GA-160 should be made. The survey recheck
should carefully examine the developmental sequences on railroad
and related heavy construction [24]
~25
[25] operations to make certain that all crafts which have worked on
such projects are fairly accounted for. If only the peak payroll for
all crafts is used by the time the largest number of employees are on a
job it appears that a number of employees such as ironworkers may have
been left out altogether. We find little in the data submitted with
respect to a realistic ironworkers rate, but the projects submitted for
wage data purposes could not be built without one. For instance
the ESA survey of project Fulton 6, Marietta Bridge over Southern
Railroad which is described by MARTA as a "structural steel
superstructure," reflected no ironworkers, and the survey of the
airport project,a $4,400,000 cut and cover reinforced concrete
tunnel reflected one reinforcing ironworker at $2.50 and one
structural ironwork at $3.60. These rates correspond to the range
of rates paid laborers on this job.
4. The survey recheck although expedited should examine all
known work clearly identified as heavy work. This would include,
by way of example, such projects as cut and cover flumes for
diverting the Flint River at the Atlanta Airport and the projects
already included in the wage determination of May 12, 1975 for
75-GA-160. [25]
~26
[26] The Board takes note of the uncooperative
attitude as reported by the North Georgia BTC of at least one
principal contractors' association early this year in supplying
labor organizations with which it deals with project data to be
used for Davis-Bacon survey data. Full cooperation when backed by
Marta at this stage should be assured. The North Georgia BTC will
have the opportunity if it proceeds with the required expedition
to establish its claim that much railroad projects and other
uncontested heavy type construction projects in the Atlanta area
are done at the negotiated building rates.
5. The Board notes from wage data submitted in this case that
projects already included in the survey leading to 75-GA-160, May
12, 1975, reflect loose if not illusive classifications of work and
of crafts. For example, there may be projects in which
"carpenters" are paid anywhere from $2.60 to $5.00 an hour, and
iron workers are paid at laborers' rates. ESA must approach that
kind of wage data with skepticism, must look for the true
journeymen's rates exclusive of learners and apprentices and must
not be taken in by misclassifications of work or by underpayments. [26]
~27
[27] ESA should certainly disregard rates taken from
Davis-Bacon jobs on other projects which reflect misclassification
or underpayment. The finally established wage schedules may not
achieve perfect balance between crafts, but they are going to have
to make common sense in the construction business for CE 540.
6. The survey recheck will exclude all water treatment and
sewage disposal plants. /FN7/ It will exclude at this step of the
survey recheck of all work on highway heretofore excluded by ESA.
It is the Board's preference and direction that ESA exhaust all
material in the "heavy" data base to develop an appropriate wage
schedule for CE-540 so that recourse to highway bridge contracts
heretofore excluded will be necessary only as a matter of last
resort.
7. With respect to the above six survey recheck items, the
Board, in effect, is directing ESA to revert to the methods and
practices existing prior to the protest by the North Georgia BTC
over ESA's non-use of water treatment and sewage disposal
plants.[27]
??????????????????
/FN7/ Footnote 8 of the Board's opinion of August 14 identified
these projects that were included in the ESA survey. It now
appears questionable that Projects Fulton 5 and Fulton 14 are water
treatment of sewage disposal plants. If these or any others listed
in footnote 8 are, in fact, not water treatment or sewage disposal
plants the Board is not asking that they be excluded. [27]
~28
[28] If the survey recheck yields the substantial and sufficient
data based upon which a practical "heavy" wage predetermination can
be made for project CE-540 with crafts showing a sensible
relationship to each other ESA will not have to inquire further to
secure a large base for wage data information.
8. If upon completion of the survey recheck under the
foregoing seven items, ESA concludes that the reported and
collected information is not reasonably sufficient to depict the
local employment situation on a "heavy" project such as CE-540, ESA
is authorized to expand the survey to include the major bridge
projects on highway work awarded under separate bridge contracts.
The Board does not share the views that have been expressed that if
any such bridge projects enter into the wage data base for the
"heavy" work on contract CE-540, it inevitably follows that later
such higher "heavy" wage rates will become the mode for subsequent
highway bridge projects. In this respect we cannot see that the
situation will change much from the time when, as the Board
understands the situation, highway work found its way into "heavy
construction" wage rate schedules such as AR-4051 of November 1,
1974. [28]
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THE "TWO COUNTY DETERMINATION" ISSUE
The Board concluded in its August 14 decision that separate
wage determinations for Dekalb County and Fulton County would be in
accordance with ESA practice. See WAB 71-04, Virginia Segment C-7,
Metropolitan Rapid Rail Transit System. /FN8/
The Labor Department does not ask that a separate rate be
established for the City of Atlanta and one for the rest of Dekalb
County or for the City of Decatur alone. The Department submits
that the City of Atlanta is in both counties. Although the county
is most frequently found to be the appropriate local political
subdivision for wage predetermination purposes often some lesser or
a larger area is used.
The Board concludes that there may not be sufficient projects
in either County taken alone for similarity comparisons to yield a
representative number of employees in each craft. Accordingly, ESA
is authorized under the [29]
??????????????????
/FN8/ In Sweet Home Stone Company, WAB 75-01 and -02 decided by
the Board on August 14, 1975, ESA advised the Board that it had
explicitly provided two schedules one "heavy" and one not heavy for
separate projects closely related in time, place and function at
the W. D. Mayo Lock and Dam on the Arkansas River. [29]
~30
[30] circumstances and at its election to use a two-county schedule
for project CE-540 if it concludes that there is not a sufficiently
representative number of employees engaged upon the work in either
one of the Counties to provide a sensible survey base.
THE BOARD'S REVIEW FUNCTION ISSUE
The Board cannot agree with Counsel for the BTD on the review
functions of the Board in WAB proceedings. The Board's review
authority is not so limited. Suffice it to say that where the
issue as here is whether the ESA properly included in its wage
survey "projects of a character similar to the contract work" such
a matter is not only a proper subject of Board review, it is a run
of the mill matter.
A comparison of the factual particulars of CE 540 taken from
the specifications with the factual particulars of water treatment
and sewage disposal plants will speak for itself. Such a
comparison should dispel from the mind of anyone conversant with
the construction industry that these are not projects of similar
construction characteristics.
The Board, which values the judgment of the principal
associations of contractors and labor organizations that bring
problems to it, thinks that the attack upon the Board's right to
review in this situation creates an [30]
~31
[31] erroneous impression. The problem here is simply that the North
Georgia Building and Construction Trades Council took a shot at garnering
in all work on the entire planned MARTA system by claiming that water
treatment and sewage disposal plants were only "heavy" type construction,
and not building type construction. But ESA itself did not accept that
entire package. It said some parts of these unitary projects were
not building construction. But ESA has never explained the formula
upon which it made its calculations dividing the work. These water
treatment and sewage disposal plants cannot be readily separated
and there is no evidence any separation was tried. And ESA did not
conclude that CE 540's characteristics were to be determined by the
characteristics of other parts of the planned MARTA system which
may not be like CE-540. As the Board said in its initial decision:
The facts have not changed enough to justify the
conclusion that the classification of heavy work has in
some inexplicable way swung all the way from the highway
side of the wage pendulum to the building side.
The acceptance of the change in labels by ESA was not an
exercise of a "fair choice of judgment" as counsel for BTD
suggests. It is the kind of error that this Board sits to [31]
~32
[32] correct. This is particularly so (1) where the consequences of
such an error are far reaching, and (2) where the error is
compounded by the claim made at the time that all of the planned
MARTA system as an entity must be in the same category of work.
The Board in its initial decision pointed out that such a claim
had alarming felo-de-se qualities.
SUPPLEMENTAL CONCLUSION
1. Except as modified under the "Adjustments for CE-540" and
the "Two County Determination" headings herein, the Board's
decision of August 25, 1975, is unchanged. A decision on CE-330
will be made with reasonable dispatch.
2. There is nothing in the Board's August 14, 1975, decision
that would preclude ESA from issuing wage determinations based upon
building and commercial rates on segments of the MARTA system where
ESA finds such rates to be warranted under its usual administrative
practices. MARTA likewise or other interested parties will be able
to challenge if they wish any such predeterminations without
prejudice by reason of the August 25, 1975, decision.
3. The Board observes as it did in its initial decision, that
all parties would be in a better position to make future plans if
they would mutually assess the situation with a view of arriving at
some understanding instead [32]
~33
[33] of continuing with some of the things brought up at the Atlanta
hearing. The Board cannot go beyond such a suggestion. Because of
MARTA's intention to be its own general contractor for much of the work
it necessarily will become involved under contract administration with
required Davis-Bacon standards and in their enforcement. The Board still
observes that for both labor and management locally there must be
a better way to run the railroad.
ORDER
The Employment Standards Administration is directed to proceed
forthwith in accordance with Davis-Bacon Act procedures and the
directions herein to come up with a new project wage rate schedule
for MARTA Project CE 540. All parties and intervenors in this
proceeding are requested to cooperate fully with ESA in its review
so that a pragmatic set of wage rates under Davis-Bacon Act
requirements will be established for CE 5400.
SO ORDERED:
(s) Oscar S. Smith, Chairman
(s) Clarence D. Barker, Member
(s) Stuart Rothman, Member [33]
