WILLIAM F. WILKE, INC., WAB No. 79-06 (WAB June 12, 1980)
CCASE:
WILLIAM F. WILKE
DDATE:
19800612
TTEXT:
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[1] WAGE APPEALS BOARD
UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, D. C.
In the Matter of
WILLIAM F. WILKE, INC. WAB Case No. 79-06
Aberdeen Proving Grounds, Md. Dated: June 12, 1980
Decision by: Alfred L. Ganna, Chairman, William T. Evans,
Member, Thomas M. Phelan, Member
DECISION BY THE WAGE APPEALS BOARD
This case is before the Wage Appeals Board on the petition of
William F. Wilke, Inc., seeking review of the decision of the
Assistant Administrator, Wage and Hour Division, dated March 23,
1978. The Assistant Administrator determined that the proper
classification of an employee welding steam lines in a building
structure is that of a steamfitter, and not a plumber as contended
by Petitioner.
This appeal arose from the fact that Petitioner was the
successful bidder for the construction of a Research Animal
Isolation Facility at Aberdeen Proving Grounds, Harford County,
Maryland, for the U.S. Army in April, 1976. The wage determination
applicable to the project included different wage rates for
plumbers and steamfitters and also included a statement that
welders "receive rates prescribed for craft performing operation
to which welding is incidental". [1]
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[2] During an on-site inspection of the project one of
Petitioner's employees was observed installing and welding steam
lines and associated fixtures. Examination of Petitioner's
payrolls indicated that the employee had been compensated as a
plumber and not as a steamfitter. The Army engineer advised
Petitioner to reimburse this employee as a steamfitter instead
of as a plumber but Petitioner declined to do this. The Army
withheld $282.45 from Petitioner's payment until the matter was
resolved. In November, 1977 the Corps of Engineers concurred
in the recommendation of the Contracting Officer and referred
the dispute to the Assistant Administrator, Wage and Hour
Division, for a ruling in accordance with Labor Department
Regulations, 29 CFR [sec] 5.12.
In March, 1978 the Assistant Administrator ruled that under
prevailing area practice welders of steam lines must receive the
rate prescribed for the steamfitter's craft. On February 23, 1979,
Petitioner filed a Petition for Review of the Assistant
Administrator's decision with the Wage Appeals Board.
Petitioner's argument to the Board is based on its practice of
operating as a non-union shop contractor and Petitioner avers that
it places no restrictions on its employees, allowing them to work
either on steam or water lines indiscrimina[]t[e]ly. Petitioner
calls these employees plumbers and for this reason claims to have
properly paid his employee welding [2]
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[3] steam lines at Aberdeen Proving Ground. Petitioner also argues
that since it is not a party to a collective bargaining agreement it
is not bound to use any particular trade to perform the necessary
duties required to build the structure.
The Wage and Hour Division points out that the wage
determination applicable to the Army project prescribed separate
classifications and rates for plumbers and steamfitters. Wage
and Hour asserts that in order to determine if employees have
been paid the proper wage rates it is necessary to determine
the prevailing practice in the area with regard to the
classification of employees who perform the work in question. Wage
and Hour also relies on earlier decisions of this Board which
held that when the wage determination in question reflects
prevailing wages in the organized sector, the wage determination
carries the classifications of work according to job content
upon which the wage rates are based, and what the practice may
have been for those contractors who do and pay what they wish,
[i.e.: the non-union shop cont[r]actor] is irrelevant. (Fry
Brothers Corp. WAB Case No. 76-06 (June 14, 1977)). In Irby
Construction Co. WAB Case No. 78-09 (March 16, 1979) the Board
stated that certain language in the Davis-Bacon Act requires that
the employment practices in the vicinity of the proposed project be
considered in determining the appropriate classification. Relying
on these decisions Wage and Hour states that the Davis-Bacon Act
and regulations governing Petitioner's contract to perform the
project obligate it to [3]
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[4] pay the prevailing wage as determined
by the Assistant Administrator, 29 CFR [sec] 5.5(a)(1)(ii).
Since it was determined from the various pleadings that no
hearing of this dispute was necessary the Board considered this
appeal in executive session on the basis of the petition and
response of William F. Wilke, Inc., filed by Petitioner, and the
Statement for the Assistant Administrator, Wage and Hour Division,
and the record of the case before the Wage and Hour Division filed
by the Solicitor of Labor.
The Board is of the opinion that the concomitant effect of the
Administrator's issuance of a wage determination is that besides
determining the prevailing wage rate, he also determines what the
area practice is insofar as which trades will perform the various
aspects of the construction of whatever is being built. As a
result the Administrator determines that a particular craft
performs certain work on the basis of information in his files,
which generally includes the collective bargaining agreement, and
this is reflected in the wage determination. In this case the
Administrator has determined a wage rate for steamfitters and also
has defined that in the Harford County area the practice of
installing pressure lines is a trade distinct from installing
regular water and sanitary pipelines. If Petitioner disagreed with
this determination for the Harford County area it was free to
challenge the determination to the Wage and Hour Division and then
to the Wage Appeals Board prior to the award of the contact. In
this appeal Petitioner complained [4]
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[5] about the wage rate for steamfitters after being awarded the
contract. Its appeal was not timely.
In Southeastern Capital Corp., WAB Case No. 78-12 (January
16, 1979) the Board stated:
If the Petitioner disagreed with Wage and Hour's
determination of the rate as provided to it by
the contracting agency, Petitioner should have
requested the Wage and Hour Division to resolve
the matter. Further appeal could have been made
to the Wage Appeals Board at that time.
These channels of appeal are provided to eliminate
questions and disagreements arising during
construction of the project and would seem to the
Board to be an appropriate effort on the part of the
contracting agencies and the Department of Labor
to assist the parties interested in Federal or
Federally assisted construction. However, they
can only be of assistance to the parties if they
avail themselves of them.
In view of the above considerations, the decision of the
Assistant Administrator is affirmed and the Petition for Review is
hereby dismissed.
BY ORDER OF THE BOARD
Craig Bulger,
Executive Secretary
Wage Appeals Board
