DE NARDE CONSTRUCTION CO., WAB No. 78-03 (WAB May 14, 1979)
CCASE:
DE NARDE CONSTRUCTION CO.
DDATE:
19790514
TTEXT:
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[1] WAGE APPEALS BOARD
UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, D. C.
In the Matter of
DE NARDE CONSTRUCTION CO. WAB Case No. 78-03
[With Respect to] Wage rates
for Roofer's Helpers Dated: May 14, 1979
Decision by: Alfred L. Ganna, Chairman, William T. Evans,
Member, Thomas M. Phelan, Member
DECISION OF THE WAGE APPEALS BOARD
This case is before the Wage Appeals Board on the petition of
the DeNarde Construction Company to review the Assistant
Administrator's denial of a request for an additional
classification for roofer's helpers at the wage rate contained in
the collective bargaining agreement negotiated between the
Associated Roofing Contractors of the Bay Area Counties, Inc.,
and Roofer's Local Union Nos. 40, 81 and 121. Petitioner was
seeking approval of the classification on a Navy contract for
exterior repair and re-roofing of housing units at Novato,
California. The applicable wage determination did not contain
a classification or wage rate for roofer's helpers.
Petitioner submitted a request to the Wage and Hour Division
for the addition of roofer's helpers to the wage determination at
60 percent of the journeyman roofer's rate, [1]
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[2] or $5.78 plus fringe benefits, as provided by the agreement.
Petitioner provided Wage and Hour with a description of the
duties to be performed by the roofer's helpers but Wage and
Hour denied the request stating that rates for helpers would be
issued only when it could be shown that employment of helpers was
a prevailing practice, the scope of their duties was defined and
the helper's duties were distinguishable from journeyman's or
laborer's duties. Petitioner requested reconsideration of Wage
and Hour's decision and this was also denied. Petitioner then
requested review of these decisions by the Wage Appeals Board.
Petitioner's arguments to the Board are based on the fact
that it has met Wage and Hour's own standards for the issuance of
a roofer's helper classification. In addition to claiming that the
employment of helpers was a prevailing practice in the area,
Petitioner submitted an affidavit of Petitioner's president, Mr.
David DeNarde, defining the duties of roofer's helpers and claimed
that DeNarde Construction Company, as a union employer, was
prevented from using extra men (helpers) on any work that could be
identified as roofing or carpentry work by its union agreements.
Finally, Mr. DeNarde swore that the employees were not employed as
informal apprentices or trainees.[2]
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[3] The Wage and Hour Division's position is based primarily
on the collective bargaining agreement establishing the roofer's
wage rate and permitting employment of "Extra-Men (Helpers)" at
60 percent of the roofer's wage rate. Wage and Hour pointed out
that the agreement permitting use of helpers contained no
limitation on the duties performed by the helpers but appeared
to permit their use as extra men to man the job. Because helpers
may perform roofer's duties Wage and Hour declined to issue a
separate classification for roofer's helpers.
After filing the appeal to this Board, Petitioner submitted
Mr. DeNarde's aforementioned affidavit to Wage and Hour for a
second reconsideration but Wage and Hour declined to change its
position on the basis of the affidavit, and so informed Petitioner
by letter dated April 10, 1979. The Board thereupon determined it
was appropriate for it to consider the petition.
This appeal has been reviewed by the full Board in executive
session on the basis of the Petition for Review, the Supplement to
Petition for Review, the Response of Petitioner to the Assistant
Administrator's statement and the affidavit filed on behalf of Mr.
DeNarde, all filed by Petitioner, and the Statement on Behalf of
the Assistant Administrator and Supplementary Statement for the
Assistant Administrator filed by the Solicitor of Labor and the
record of the case in the Wage and Hour Division. [3]
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[4] It appears to the Board that the resolution of this appeal
must be based on the terms of the collective bargaining agreement
upon which the employment of roofer's helpers is based. The Board
is also aware that if a wage rate for roofer's helpers is permitted
it will be available to all contractors who perform contracts in
the geographic area to which the collective bargaining agreement
applies, assuming the practice of employing helpers prevails
throughout the jurisdiction. With this in mind the fact that a
contractor, such as Petitioner, is foreclosed from using extra men
(helpers) as journeymen roofers or carpenters by other union
agreements is not controlling because there is also information in
the record that other contractors in the area employing extra men
(helpers) do not observe these distinctions and are able to employ
helpers under the agreement to perform roofer's duties.
Upon consideration of the Working Agreement the Board finds
that there is no provision contained in it that will prevent extra
men (helpers) from performing roofer's duties. It appears from
Section 3, Article 5 that extra men (helpers) will not be assigned
to a job until all Permanent and Temporary Employees (as defined in
the agreement) have been dispatched from the Local Union. Then the
extra men (helpers) may perform [4]
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[5] any duties assigned to them by their employer. From the point of
view of the Department of Labor, it would be improper to approve
the additional classification in advance of the employment of the
extra men (helpers) in the absence of any safeguard in the agree-
ment that would prevent an employee from applying materials to the
roof or performing other roofer's duties. Furthermore, it is not
appropriate to determine a wage rate for roofer's helpers at 60
percent of the journeyman rate simply because the extra man
(helper) is not a member of the union. In view of this, the Board
cannot agree with the Petitioner that the Assistant Administrator
erred in denying the request for the additional classification.
Based on these considerations the Petition for Review is
dismissed and the decision of the Assistant Administrator is hereby
affirmed.
BY ORDER OF THE BOARD
Craig Bulger,
Executive Secretary [] [5]
Wage Appeals Board
