BOSTON DISTRICT COUNCIL OF CARPENTERS, WAB Case No. 93-10 (WAB July 2, 1993)
CCASE:
BOSTON DISTRICT COUNCIL OF CARPENTERS
DDATE:
19930702
TTEXT:
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[1] WAGE APPEALS BOARD
UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, D. C.
In the Matter of:
BOSTON DISTRICT COUNCIL WAB Case No. 93-10
OF CARPENTERS
With respect to request for
reconsideration of the carpenter's
rate for residential construction
issued in General Wage Determination
No. MA930005, Middlesex County,
Massachusetts
BEFORE: Charles E. Shearer, Jr., Chairman
Ruth E. Peters, Member
DATED: July 2, 1993
DECISION OF THE WAGE APPEALS BOARD
This matter is before the Wage Appeals Board on the petition
of Boston District Council of Carpenters ("Petitioner" or "BDC")
for review of a May 7, 1993 ruling by the Acting Administrator of
the Wage and Hour Division. That ruling denied BDC's request for
reconsideration of the wage and fringe benefit rates for carpenters
as determined to be prevailing for Middlesex County, Massachusetts
under General Wage Decision ("GWD") No. MA930005, pursuant to the
Davis-Bacon Act (40 U.S.C. [sec] 276a et seq.). Oral argument was
waived by BDC and Petitioner filed no statement in reply to the
Acting Administrator's arguments for denial of the Petition for
Review. For the reasons stated below, this petition is denied and
the ruling of the Acting Administrator is affirmed. [1]
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[2] BACKGROUND
GWD No. MA930005 is applicable to construction of residential
projects which include single-family homes and apartments up to and
including four stories. The Wage and Hour Division surveyed wage
data for projects of a character similar to residential
construction. Several BDC union locals responded to the survey;
however union carpenter payment data was less than a majority of
the surveyed carpenters and therefore was not sufficient to support
determination of union rate prevailing wages. An average of union
and non-union carpenters' wages -- $18.16 hourly and $4.38 in
fringe benefits -- was determined as prevailing for Middlesex
County.
On February 24, 1993, BDC requested the Acting Administrator
to reconsider the rates determined to prevail for carpenters under
the GWD, alleging that area practice did not support the averaging
methodology. BDC also stated in the request that it was compiling
additional data for submission. Additional information concerning
carpenters' wages paid by three contractors was submitted to the
Acting Administrator on March 19, 1993. BDC further objected -- in
a March 17, 1993 letter -- to four alleged deficiencies in the wage
survey process: 1) use of data from areas /FN1/ outside the
Metropolitan Statistical Area ("MSA"); 2) failure to determine the
carpenter's rate on an area-by-area basis within Middlesex County
as done for certain other trades; 3) incompleteness of the survey
data; and 4) the timing (Winter 1992) of Wage and Hour's survey
period.
In his May 7 ruling, the Acting Administrator dismissed these
objections. Although MSAs are defined in terms of Cities and Towns
in the six New England states, the Acting Administrator noted that
all of Middlesex County had been defined by the Office of
Management and Budget as part of a Consolidated Metropolitan
Statistical Area since approximately 1989. Middlesex County
therefore was appropriately considered as a single urban county for
the purpose of surveying wages. Second, certain other trades'
rates were determined by areas within Middlesex County because the
prevailing rates were the union rates for those trades and the wage
determination recognized the territorial jurisdictions. With
respect to the third allegation, the Acting Administrator accepted
the addition of wage data for two contractors and revised the wage
determination for carpenters upward. The revised rate -- still an
average -- is a basic rate of $19.05 hourly and $4.38 in fringe
benefits. Finally, the winter survey date --January 6, 1992 -- was
explained as the date the Middlesex County survey was initiated;
the full survey period for which data was collected was August 1,
1991 to October 31, 1991. The survey was open for submission of
data for approximately eight months. [2]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
/FN1/ Only one such area -- Billerica Township -- was cited as an
example. [2]
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[3] II. DISCUSSION
Petitioner's limited arguments presented to the Board concern
the completeness and accuracy of the wage survey data. However,
BDC has submitted no additional information to either the Wage and
Hour Division or the Board during these proceedings which would
support the claim that there might be additional union rate project
data which had been improperly omitted by the Wage and Hour
Division /FN2/.
BDC's principal contention appears to be the inaccuracy of
project data used by Wage and Hour from the so-called Putnam
Gardens project. To the extent that the original wage
determination for carpenters was revised upward to reflect the
wages paid by two contractors -- Stanley & Sons, Inc. and Cross
Contracting Corp. -- Wage and Hour addressed BDC's concern.
Petitioner further contends that the survey should reflect union
wage payment by three other contractors (AFJ, Inc., Save-On-Wall
Company, Inc., and Peabody Construction Co.).
The Acting Administrator argues the record demonstrates that
as a result of the second survey compilation, Wage and Hour found
and utilized 9 additional carpenters (from the AFJ and/or the Save-
On data) who were paid at the union rate; the hourly wage -- still
based on the average paid union and non-union carpenters -- was
raised nearly $1.00 per hour. Petitioner has neither replied to
this contention nor produced any additional payroll data for the
two firms to demonstrate possible error on Wage and Hour's part.
No data from Peabody was utilized -- states the Acting
Administrator -- because that firm was the prime contractor on the
Putnam project and subcontracted the carpentry work to the other
companies. Although Petitioner has submitted a letter from Peabody
stating that it paid the union rate at Putnam to its carpenters,
BDC has produced no payroll information to support this contention.
The foregoing synopsis of petitioner's case demands the
conclusion that BDC has failed to present any wage information to
support its request for reconsideration of the carpenter's rate in
GWD No. MA930005. In challenging a wage determination, a
petitioner must bear the burden of proof in order to demonstrate
error on the Wage and Hour Division's part. See Edgewood Terrace
II, WAB Case No. 73-02 (Apr. 4, 1973), slip op. at 14-15. The
burden has not been met in this case. [3]
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/FN2/ Counsel for the Acting Administrator notes, in this regard,
a February 10, 1992 letter to BDC from Carpenters Local 475,
stating the local had reviewed its "records for other projects that
might fit the residential description and the time frame with not
positive results. It is a disappointment to send this discouraging
result, but it does reflect what's been happening out this way -
not much." Record Tab B. [3]
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[4] For the foregoing reasons, the Acting Administrator's May 7,
1993 ruling is affirmed and the petition for review is dismissed.
BY ORDER OF THE BOARD:
Charles E. Shearer, Jr., Chairman
Ruth E. Peters, Member
Gerald F. Krizan, Esq.
Executive Secretary [4]
