LARGO LANDING FELLOWSHIP HOUSE, WAB No. 82-14 (WAB Mar. 11, 1983)
CCASE:
LARGO LANDING FELLOWSHIP HOUSE
DDATE:
19830311
TTEXT:
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[1] [82-14TEL.WAB]
TELEGRAPHIC MESSAGE
NAME OF AGENCY: U.S. DEPARTMENT OF LABOR
OFFICE OF THE UNDER SECRETARY
WAGE APPEALS BOARD
ACCOUNTING CLASSIFICATION: 3165-1-5-M-019-75000-2330
DATE PREPARED: 3-11-83
NAME: CRAIG BULGER, EXEC. SECY.
TO: ALL PERSONS ON THE ATTACHED LIST
RE: LARGO LANDING FELLOWSHIP HOUSE WAB CASE NO. 82-14
HUD PROJ. NO. 000-EH-036, PRINCE GEORGE'S COUNTY, MD
BEFORE: ALVIN BRAMOW, CHAIRMAN, THOMAS X. DUNN, MEMBER, AND
GRESHAM C. SMITH, ALTERNATE MEMBER
DECISION OF THE WAGE APPEALS BOARD
A PETITION WAS FILED WITH THE WAGE APPEALS BOARD ON BEHALF OF
FELLOWSHIP SQUARE FOUNDATION, INC., SEEKING REVIEW OF THE ASSISTANT
ADMINISTRATOR'S DECISION OF OCTOBER 15, 1982, DENYING
RECONSIDERATION OF PETITIONER'S REQUEST TO CHANGE THE WAGE RATES
ISSUED IN THE WAGE DETERMINATION APPLICABLE TO THE CONSTRUCTION OF
LARGO LANDING FELLOWSHIP HOUSE, A HUD PROJECT IN PRINCE GEORGE'S
COUNTY, MARYLAND. THE PROJECT IS DESCRIBED AS A SIX STORY, 106
UNIT APARTMENT BUILDING WITH ELEVATOR, TO HOUSE THE ELDERLY AND
HANDICAPPED.
SPECIFICALLY, PETITIONER IS CLAIMING THAT RESIDENTIAL WAGE
RATES FROM PRINCE GEORGE'S COUNTY, USUALLY LIMITED TO SINGLE FAMILY [1]
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[2] HOUSES, WALK-UPS AND GARDEN-TYPE APARTMENTS 4 STORIES OR
LESS SHOULD APPLY TO FELLOWSHIP HOUSE. THE WAGE AND HOUR DIVISION
ISSUED BUILDING CONSTRUCTION RATES FOR THE PROJECT.
UPON CONSIDERATION OF THE DOCUMENTS FILED IN CONNECTION WITH
THE APPEAL AND BECAUSE A DECISION FROM THE BOARD MUST BE RECEIVED
BY MID-MARCH TO BE OF USE TO PETITIONER, AN EXPEDITED HEARING BY
THE FULL BOARD WAS HELD ON FEBRUARY 24, 1983. IT IS PETITIONER'S
POSITION THAT IN MAKING ITS REQUEST FOR RESIDENTIAL RATES IT IS NOT
ASKING WAGE AND HOUR TO "CARVE OUT" ALL RESIDENTIAL CONSTRUCTION,
SIX STORIES OR LESS, FROM THE GENERAL CATEGORY OF BUILDING
CONSTRUCTION. INSTEAD, PETITIONER ARGUES THAT THIS BUILDING IS
SUFFICIENTLY SIMILAR IN A CONSTRUCTION SENSE TO RESIDENTIAL
CONSTRUCTION OF GARDEN-TYPE APARTMENT HOUSES, 4 STORIES OR LESS,
THAT IT SHOULD RECEIVE THE SAME WAGE RATES DESPITE THE FACT THAT
THE BUILDING IS 6 STORIES HIGH. PETITIONER ALSO PROVIDED WAGE DATA
TO WAGE AND HOUR FROM OTHER RESIDENTIAL CONSTRUCTION IN THE
WASHINGTON AREA [2]
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[3] WHICH IT CLAIMS DEMONSTRATES THAT CONSTRUCTION SIMILAR TO THIS IS
NOT ALWAYS BUILT AT THE WAGE RATES ISSUED FOR THIS PROJECT. PETITIONER
IS NOT CLAIMING THAT THE WAGE RATES IN THIS INFORMATION WOULD
NECESSARILY SET THE RATES FOR THE FELLOWSHIP SQUARE PROJECT.
THE WAGE AND HOUR DIVISION DECLINED TO CHANGE THE WAGE RATES
BECAUSE IT FOUND THAT THE WAGE SURVEY IT HAD CONDUCTED OF BUILDING
CONSTRUCTION IN PRINCE GEORGE'S COUNTY HAD SUPPORTED THE WAGE RATES
IT HAD ISSUED AND THAT THE WAGE DATA SUBMITTED BY PETITIONER DID
NOT DEMONSTRATE THAT PROJECTS SIMILAR TO FELLOWSHIP HOUSE IN PRINCE
GEORGE'S COUNTY WERE BUILT AT THE WAGES PETITIONER CLAIMED WERE
PREVAILING.
THE BUILDING TRADES DEPARTMENT SUPPORTED THE POSITION OF THE
WAGE AND HOUR DIVISION IN THIS APPEAL.
AT THE HEARING THE BOARD OBSERVED THAT THE WAGE AND HOUR
DIVISION HAD CONDUCTED ITS SURVEY IN PRINCE GEORGE'S COUNTY IN ITS
USUAL AND LONG ESTABLISHED MANNER AND THEREFORE THE BOARD FINDS [3]
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[4] THAT THE SURVEY CARRIES A PRESUMPTION OF CORRECTNESS. THE
WAGE INFORMATION SUBMITTED BY PETITIONER HAD NO BEARING ON
WAGE RATES PAID ON RESIDENTIAL CONSTRUCTION OVER 4 STORIES IN
HEIGHT IN PRINCE GEORGE'S COUNTY.
AT THE HEARING IT BECAME CLEAR TO THE BOARD THAT ALTHOUGH
PETITIONER DISCLAIMS THAT IT WAS REQUESTING A "CARVE-OUT", PROBABLY
DUE TO THE BOARD'S DECISION IN 2900 VAN NESS STREET, WAB CASE NO.
76-11 (JANUARY 27, 1977) WHICH LIMITED FURTHER "CARVE-OUTS" FROM
THE CATEGORY OF GENERAL BUILDING CONSTRUCTION, A NEW "CARVE-OUT"
WOULD IN FACT BE THE EFFECT OF APPLYING RESIDENTIAL WAGE RATES TO
THE 6 STORY BUILDING PROPOSED BY FELLOWSHIP SQUARE. THE BOARD
CANNOT UNDERTAKE TO MAKE AN EXCEPTION FOR ONE PROJECT WITHOUT
CONSIDERING THE EFFECT THE DECISION WOULD HAVE ON SIMILAR
CONSTRUCTION IN FUTURE CASES BEFORE IT.
PETITIONER WAS ASKING THE BOARD AT THE HEARING AND IN ITS
POST-HEARING MEMORANDUM TO LOOK AT FELLOWSHIP HOUSE FROM A
CONSTRUCTION [4]
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[5] POINT OF VIEW AND JUDGE THAT ALTHOUGH IT IS TWO STORIES HIGHER, IT
IS NEVERTHELESS BUILT IN A MANNER CLOSE ENOUGH TO GARDEN-TYPE APARTMENTS
IN PRINCE GEORGE'S COUNTY THAT IT SHOULD CARRY THE SAME WAGE RATES. THE
BOARD DOES NOT ACCEPT THIS THESIS. WHEN THE WAGE-AND HOUR DIVISION
BEGAN ISSUING RESIDENTIAL RATES FOR LOW RISE RESIDENTIAL CONSTRUCTION IN
MUCH OF THE COUNTRY IT DID SO BECAUSE IT WAS DEMONSTRATED THAT THE
CONSTRUCTION INDUSTRY ITSELF HAD RECOGNIZED THE DISTINCTION BETWEEN
HIGH-RISE AND LOW-RISE RESIDENTIAL CONSTRUCTION. THE CONTRACTORS WHO
BUILT LOW-RISE RESIDENTIAL CONSTRUCTION GENERALLY WERE NOT THE SAME
CONTRACTORS WHO PERFORMED THE BUILDING CONSTRUCTION PROJECTS AND THE
WAGE RATES THEY PAID WERE NOT THE SAME EITHER. THIS WAS SHOWN BY
COLLECTIVE BARGAINING AGREEMENTS AND OTHER PAYROLL EVIDENCE FROM
SPECIFIC PROJECTS SUBMITTED TO THE WAGE AND HOUR DIVISION~ .
IN THIS CASE, THE BOARD IS FACED WITH A 6 STORY, ELEVATOR
BUILDING WITH LOAD BEARING WALLS AND FIREPROOF CONSTRUCTION.
ALTHOUGH SOME [5]
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[6] A[SP]ECTS OF IT MAY RESEMBLE GARDEN-TYPE APARTMENT CONSTRUCTION,
MANY MORE ASPECTS OF IT ARE COMMON TO GENERAL BUILDING CONSTRUCTION.
THE BOARD WOULD REMIND PETITIONER THAT A "BUILDING CONSTRUCTION" SURVEY
WILL GENERALLY CONTAIN MANY TYPES OF CONSTRUCTION SINCE IT WILL INCLUDE
EXAMPLES OF BUILDING CONSTRUCTION RANGING FROM ONE STORY STRUCTURES TO
HIGH-RISES. THE BOARD CANNOT SAY THAT THE TYPE OF CONSTRUCTION PROPOSED
FOR FELLOWSHIP HOUSE IS DIFFERENT FROM THAT WHICH WOULD BE FOUND IN A
GENERAL BUILDING CONSTRUCTION SURVEY. THE BOARD DETERMINED IN MATTAPONY
TOWERS APARTMENTS, WAB CASE NO. 64-02 (JUNE 29, 1965) WHERE IT WAS
ARGUED THAT A SEVEN STORY BUILDING IN BLADENSBURG, MARYLAND, SHOULD
CARRY THE RESIDENTIAL WAGE RATES BASED ON THE FACT THAT THE BUILDING WAS
BEING BUILT WITH LOAD BEARING WALLS INSTEAD OF THE STEEL FRAME OFTEN
FOUND IN HIGH-RISE APARTMENT CONSTRUCTION THAT: "ONE OF THE FACTORS
VIEWED ALONE MAY NOT SUPPORT A FINDING THAT THE PROJECT IS HIGH-RISE
CONSTRUCTION. YET WHERE ALL ARE PRESENT, WE MUST [6]
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[7] CONCLUDE THAT THE PROJECT RETAINS AND HAS NOT LOST THE
CHARACTERISTICS WHICH PLACES HIGH-RISE CONSTRUCTION IN THE GENERAL
BUILDING CATEGORY."
ALTHOUGH PETITIONER HAS URGED STRONGLY IN A POST HEARING
MEMORANDUM THAT THE FELLOWSHIP HOUSE PROJECT CAN BE DISTINGUISHED
FROM MATTAPONY TOWERS, THE BOARD DOES NOT AGREE. THE FACTS IN
FELLOWSHIP HOUSE WHICH IT IS ARGUED MAKE IT SIMILAR TO LOW-RISE
RESIDENTIAL CONSTRUCTION ARE NOT SUFFICIENT TO REMOVE THE PROJECT
FROM THE GENERAL BUILDING CONSTRUCTION CATEGORY. FURTHERMORE, IT
APPEARED AT THE HEARING THAT THE ONLY TWO OTHER HIGH-RISE
RESIDENTIAL PROJECTS IN PRINCE GEORGE'S COUNTY WHICH WERE FOUND IN
THE CURRENT WAGE AND HOUR SURVEY, ONE AN 8 STORY BUILDING AND ONE
A 10 STORY BUILDING, WERE BUILT AT THE GENERAL BUILDING
CONSTRUCTION WAGE RATES.
IN VIEW OF THESE CONSIDERATIONS, THE ASSISTANT ADMINISTRATOR'S
DECISION IS AFFIRMED AND THE PETITION HEREIN IS DISMISSED.
BY ORDER OF THE BOARD
CRAIG BULGER,
EXECUTIVE SECRETARY [7]
