ASSOCIATED BUILDERS AND CONTRACTORS OF TEXAS GULF COAST, INC., WAB No. 78-27
(WAB Apr. 6, 1979)
CCASE:
ASSOCIATED BUILDERS AND CONTRACTORS
DDATE:
19790406
TTEXT:
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[1] WAGE APPEALS BOARD
UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, D. C.
In the Matter of
ASSOCIATED BUILDERS AND CONTRACTORS WAB Case No. 78-27
OF TEXAS GULF COAST, INC.
Wage Surveys for Building Dated: April 6, 1979
and Heavy Construction
Projects, Brazoria Co., TX
ORDER GRANTING MOTION TO DISMISS
The Wage Appeals Board has received a petition from the
Associated Builders and Contractors of Texas Gulf Coast, Inc.,
seeking review of an action taken by the Assistant Administrator,
Wage and Hour Division, in regard to building and heavy wage rate
surveys being conducted in Brazoria County, Texas. Specifically,
Petitioner is questioning the fact that Wage and Hour advised it
orally and in writing that a survey of heavy and building
construction in Brazoria County, Texas, would only cover current
projects after June 15, 1978. Petitioner at considerable effort
and expense submitted wage data from numerous projects within the
time frame of June 15, 1978 through October 1, 1978 for
consideration by Wage and Hour. Upon review of Petitioner's wage
information Wage and Hour notified Petitioner that it would
continue collecting wage data for the survey but was going to
enlarge the scope of the [1]
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[2] survey to accept projects completed after October 1, 1977,
instead of June 15, 1978.
Petitioner's appeal is based on the fact that it has incurred
substantial expense and effort in providing Wage and Hour with a
large amount of wage data from many current projects in the County
and has relied on Wage and Hour's oral and written statements as to
the scope of the survey, that the enlarged time period is now in
excess of one year, that Wage and Hour's Manual of Operation for
Wage Determinations requires Wage and Hour to include only [*]
current [*] jobs if there is sufficient current construction on
which to base a schedule. Furthermore, Petitioner fears that wage
data from projects completed over one year ago will be arbitrary
and not reflect current wage conditions. Petitioner notes that
the wage schedules Wage and Hour is now issuing for Brazoria County
were based on surveys of only 34 projects whereas Petitioner
submitted to Wage and Hour wage data from 68 building projects and
230 heavy projects which it contends should be more than sufficient
to support the survey. Petitioner claims that the surveys are
improper, arbitrary, capricious and in violation of law and Wage
and Hour's regulations, and fears that a wage schedule based on
these surveys will likely be [2]
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[3] improper, arbitrary, and capricious. The surveys in question have
not been completed at the present time.
Upon receipt of the Petition for Review the Board sent notices
to interested parties including the Solicitor of Labor requesting
their participation in the appeal. The Solicitor of Labor on
behalf of the Assistant Administrator, Wage and Hour Division, and
the Building and Construction Trades Department, AFL-CIO (BTD) have
each filed a Motion to Dismiss the Petition to the Board.
It is the position of Wage and Hour Division and BTD that the
Petition for Review is premature because the surveys to which
Petitioner has objected have not been completed at this time and
Wage and Hour therefore has not issued a final decision which is
reviewable by the Wage Appeals Board under the Secretary's Order
No. 24-70 (36 FR 306, January 8, 1971).
After the filing of the Solicitor of Labor's Motion to Dismiss
Petitioner filed a brief in support of its Petition for Review, and
a Response to the Assistant Administrator's Motion to Dismiss. The
National Office of the Associated Builders and Contractors, Inc.,
filed an amicus c[ur]iae brief in support of Petitioner. Finally,
the Solicitor of Labor filed a Statement in Reply to the Brief
for Petitioner. [3]
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[4] The Wage Appeals Board considered the various pleadings in
executive session and notes that in Petitioner's response to the
Solicitor's Motion to Dismiss the Petitioner is, among other
things, requesting the Board to withhold ruling on the Motion until
a final hearing or ". . . the Board should require the Assistant
Administrator to file a written statement responding to the
Petition . . . and explaining the actions taken to which the
Petitioner has taken issue."
The Board is of the opinion that the Solicitor's Statement
in Reply to Brief has provided the explanation of the actions
taken which the Petitioner is questioning. In view of this the
Board is not prepared at this point to determine what the
appropriate term of survey period is. There appears to be no
further action that the Board should require of Wage and Hour other
than the normal completion of the surveys. The Board agrees with
the Solicitor of Labor and the BTD that the Wage and Hour Division
has not issued a final decision at this point in the proceedings
which the Wage Appeals Board may review. Despite the fact that
it was unfortunate from Petitioner's point of view that Wage and
Hour enlarged the scope of the survey, it has not and will not
prejudice the Petitioner's position until the results of the
surveys are published in wage determinations. The Board is [4]
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[5] mindful of wage data submitted by Petitioner in the earlier and
related appeal Wage Rates for Construction of Strategic Petroleum
Reserve Projects at Bryan Mound, Brazoria Co., TX., (WAB 78-11,
May 22, 1978) wherein the greater part of the wage rate information
submitted was incomplete and not in a form that could be utilized
in the survey by Wage and Hour. This fact makes Wage and Hour's
explanations for expanding the survey appear reasonable, although
the Board is expressing no opinion at this time on the value and
completeness of Petitioner's wage information nor on the necessity
to expand the surveys. If the wage determination eventually issued
as a result of the surveys is questioned for the reasons set forth
in this petition or for any other reasons, these problems may be
brought back to the Board at that time.
BY ORDER OF THE BOARD
Craig Bulger,
Executive Secretary
