MARYLAND EQUIPMENT, INC., WAB No. 85-24 (WAB June 13, 1986)
CCASE:
MARYLAND EQUIPMENT, INC
DDATE:
19860613
TTEXT:
~1
[1] WAGE APPEALS BOARD
UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, D. C.
In the Matter of
Disputes concerning payment of
prevailing wage rates by: WAB Case No. 85-24
MARYLAND EQUIPMENT, INC., et al. Dated: June 13. 1986
On Metro Contract No. 1B0091
Forest Glen, Sta., MD
BEFORE: Alvin Bramow, Chairman, Thomas X. Dunn, Member
Stuart Rothman, Member, Dissenting
DECISION OF THE WAGE APPEALS BOARD
This case is before the Wage Appeals Board on the petition of
BHB Trucking, subcontractor, seeking review of the Administrative
Law Judge's Decision and Order of September 6, 1985. See
attachment.
The Administrative Law Judge found that Maryland Equipment
performed a specific part of the original contract calling for the
clearing and disposal of excavated material, and concluded that it
operated as a subcontractor and not as a materialman. Therefore,
Maryland Equipment's employees are covered by the labor standards
provisions of the Urban Mass Transportation Act of 1964, 49 U.S.C.
[sec] 1609. [1]
~2
[2] The Board considered this appeal on the basis of the entire
record before the ALJ, the petition for review, brief on behalf of
the petitioner, and a statement on behalf of the Assistant
Administrator, Wage and Hour Division, filed by the Office of
the Solicitor of Labor. The majority finds nothing in the briefs,
including the various court cases and Wage Appeals Board cases
cited therein, detract[s] from the decision of the Administrative
Law Judge.
The findings and conclusions of law and the Order set forth in
the Administrative Law Judge's Decision and Order are adopted in
their entirety as the Decision of the majority of the Wage Appeals
Board.
In view of the foregoing, the Decision and Order of the
Administrative Law Judge is affirmed and the petition herein is
dismissed.
* * *
Member Rothman, dissenting.
In this case the Board's majority adopts a decision of an
Administrative Law Judge as its own. The facts upon which the
decision of the ALJ is based are not clear enough for me to join
with the majority. Additionally, I am troubled by reasoning
which compels Davis-Bacon Act coverage in the case in which bona
fide commercial sand and gravel companies purchase excavated rock
at a construction site for their own purposes. The construction [2]
~3
[3] contractors subject to the Davis-Bacon Act did not use
Davis-Bacon Act encumbered funds to pay the sand and gravel
companies to haul the rock away. The sand and gravel companies
paid the contractor[]s to get the rock for commercial purposes.
Kiewit-Shea, under contract with the Washington Metropolitan
Area Transit Authority to construct the Forest Glen Metro Station
and line in Silver Spring, Maryland, excavated approximately
410,000 tons of rock and material, piling it at the edge of the
construction site. It contracted with BHB Trucking Company for
$389,500 to load, haul and dispose of the material. BHB Trucking
Company did not haul the material at all. /FN1/ It sold it to
Brandywine Sand and Gravel Company and Eco-Rok, Inc. [] There is
no claim the sales/purchase agreement was a subterfuge to avoid
Davis-Bacon-coverage. Brandywine and Eco-Rok in turn hired
Maryland Equipment, Inc., a trucking company, to haul the material
from the construction site to Brandywine and Eco-Rok facilities for
crushing 20 and 25 miles away.
The Administrative Law Judge concluded that Maryland
Equipment, Inc., performed a specific part of the original contract
calling for clearing and disposal of excavated material; therefore,
it operated as a subcontractor and not as a materialman. The
question may be asked: Subcontractor to whom?
I would remand this case to the ALJ for a more thorough [3]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
/FN1/ The Board normally declines to get involved in the time or
terms of contracting agency awards. [3]
~4
[4] factual investigation for the following reasons:
1. I cannot be sure that the correct decision is reached in
this case without knowing more about the terms and conditions of
the sale of the rock.
2. The project (inferentially done with the approval of the
contracting agency) included the sale of the rock to a purchaser
loaded by BHB at the project site. It is therefore not at all
clear where the defined project came to an end, despite the
requirement that Kiewit-Shea and BHB actually haul the material
away. No contractor engaged in the construction industry hauled
it any place. I would direct the Administrator or ALJ to consider
the question, how far could BHB have hauled this material for less
than $1.00 a ton?
3. The ALJ concluded and the Administrator argues to the
Board that Maryland Equipment, Inc., was a "second-tier"
subcontractor to BHB, a first-tier subcontractor to Kiewit-Shea.
The question may be asked, however, what about Brandywine Sand
and Gravel Company and Eco Rock, Inc., who purchased the rock
at the edge of the project site only loaded by BHB. Was it not
Brandywine and Eco-Rok who contracted with Maryland Equipment to
haul the material to their processing plants? Neither the ALJ
decision nor the Administrator's brief tells the Board how
Maryland Equipment became the subcontractor of BHB. Nor are we
told in the Administrator's brief or the ALJ decision that after
BHB loaded the trucks, that BHB exercised any direction or control [4]
~5
[5] over Maryland Equipment, Inc., employees or over that
company as a subcontractor of BHB. If BHB did continue to
exercise such direction or control, the Administrator or the ALJ
should bring this out through investigation.
Without prejudging the ultimate result to be reached in this
case, I would remand the matter to the Administrator, Wage and Hour
Division, or the ALJ for a fuller investigation of the facts. If,
when the Administrator or ALJ concluded his investigation and
issued his decision based thereon, this case should come back to
the Wage Appeals Board on the petition of any interested party, I
would request that the matter be fully aired by the attendance of
the parties at a Board hearing. The parties are located in the
Washington vicinity and there should be no hardship in their
attendance.
BY ORDER OF THE BOARD
Craig Bulger,
Executive Secretary
Wage Appeals Board
Attachment [5]
