CCASE:
CORONADO WRECKING AND SALVAGE CO.
DDATE:
19780207
TTEXT:
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[1] WAGE APPEALS BOARD
UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, D. C.
In the Matter of
CORONADO WRECKING AND SALVAGE CO. WAB Case No. 77-15
Albuquerque, New Mexico Dated: February 7, 1978
APPEARANCES: Paul S. Wainwright, Esquire for Coronado Wrecking
and Salvage Co.
George E. Rivers, Esquire, Ronald S. Robins, Esquire
for the Wage and Hour Division, U.S. Department of
Labor
Decision by: Alfred L. Ganna, Chairman, William T. Evans, Member,
Thomas M. Phelan, Member
ORDER GRANTING MOTION TO DISMISS PETITION
This case is before the Wage Appeals Board on the petition
of Coronado Wrecking and Salvage Co. seeking review of the May 25,
1977, decision of the Assistant Administrator for the Wage and Hour
Division, Employment Standards Administration, denying Petitioner's
request for a fact-finding hearing under Section 5.11(b) of Title
29 of the Code of Federal Regulations. After the petition was
filed with the Board the Solicitor of Labor on behalf of the
Assistant Administrator filed a motion [1]
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[2] to dismiss the petition and on December 9, 1977, Petitioner filed a
response to the motion to dismiss.
This petition arose out of the fact that Coronado Wrecking
and Salvage Co. was the prime contractor on Demolition Contract D-8
with the Urban Development Agency of the City of Albuquerque
pursuant to the U.S. Housing Act of 1949. During the course of the
contract four truck drivers were employed to haul debris from the
jobsite to a dump. These truck drivers would pick up their trucks
at Petitioner's yard and drive to the jobsite in the morning and
return the trucks to the yard in the evening. During the period
when the drivers were on the way to and from the yard as well as
isolated instances when a truck would break down, the prevailing
rate for truck drivers pursuant to the applicable wage
determination was not paid, instead a lesser wage rate was paid.
The contracting agency, Urban Development Agency of the City
of Albuquerque, conducted a compliance investigation pursuant to
the complaint by the truck drivers and determined that the work in
question was covered by the labor standards provisions of the
Housing Act of 1949 and that $1,292.85 in back wages was owed to
the four employees. Several conferences between representatives of
the contracting agency and the Petitioner [2]
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[3] failed to produce an agreement concerning back wages or restitution.
Subsequently, through the Department of Housing and Urban Development,
Petitioner requested a fact-finding hearing before an administrative law
judge pursuant to 29 CFR 5.11(b).
On May 25, 1977, the Assistant Administrator denied
Petitioner's request for the [sec] 5.11(b) hearing, stating that
Petitioner failed to meet the criteria of the applicable
regulation, that is that the dispute concerning the payment of
prevailing wages or proper classifications must involve significant
sums of money, a large group of employees or a novel or unusual
circumstance. In lieu thereof, the Assistant Administrator
issued a ruling pursuant to 29 CFR 5.12 that the truck drivers
were employed "in the development of the project" pursuant to
the Housing Act of 1949, and the duties of picking up and returning
the trucks to the yard were an integral part of their principal
activities and related to the performance of the contract work.
Therefore, the Assistant Administrator found that truck drivers
were entitled to the predetermined wage rate for these activities.
The Board considered this matter on the basis of the
Petition for Review filed by the Petitioner, the record filed by [3]
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[4] the Solicitor of Labor, the Motion to Dismiss and supporting
brief also filed by the Solicitor of Labor on behalf of the
Assistant Administrator. It was determined that a hearing by
the Board would not be necessary to decide the appeal since the
factual situation was undisputed. Although the Assistant
Administrator's May 25, 1977, decision denied the [sec] 5.11(b)
hearing, as discussed at page 3 above, it is noted that the
decision went further and issued a ruling under [sec] 5.12 that
affirmed the Department's earlier finding that the truck drivers
were due the applicable prevailing wage rate for the time spent
driving from the firm's yard to the project site in the morning,
and returning to the yard in the afternoon. Petitioner has not
specifically chall[]nged this ruling in his petition but has
reiterated his request for the fact-finding hearing. Therefore,
the sole issue to be decided is whether it was an abuse of
discretion for the Assistant Administrator to deny the requested
[sec] 5.11(b) hearing.
The Board has recognized that the authority delegated to
the Assistant Administrator to grant hearings pursuant to [sec]
5.11(b) is discretionary. See Espana Gardens, WAB Case No. 76-15
(May 4, 1977). There is no indication in the record that the
Assistant Administrator's actions in denying the hearing were
either arbitrary or capricious. It seems to the Board that the
criteria [4]
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[5] contained in [sec] 5.11(b) that the dispute must concern payment of
prevailing wage rates or proper classifications which involve
significant sums of money, large groups of employees or novel or unusual
circumstances have not been met.
The Board upholds the decision of the Assistant
Administrator and grants the motion to dismiss the petition.
BY ORDER OF THE BOARD
Craig Bulger, Executive Secretary
Wage Appeals Board [5]
