[1] WAGE APPEALS BOARD
UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, D. C.
In the Matter of:
FRANZEN-HILL WAB Case No. 95-04
With respect to conformed classifications
under Wage Determination No. CA93-4 applicable
to Contract No. 1334CX8000939111 for
construction of a fueling station (including
installation of underground tanks and pumps),
Mariposa County, California
BEFORE: Karl J. Sandstrom, Presiding Member
James C. Riley, Member
Joyce D. Miller, Alternate Member
DATED: November 30, 1995
DECISION OF THE WAGE APPEALS BOARD
This matter is before the Wage Appeals Board on the petition
of Franzen-Hill Corporation (Petitioner), seeking review of the
March 20, 1995 final ruling, issued on behalf of the
Administrator, Wage and Hour Division (Administrator). In her
determination, the Administrator denied Petitioner's request to
add certain classifications and wage rates to Wage Determination
(WD) CA93-4, applicable to construction under the captioned
contract subject to the labor standards provisions of the
Davis-Bacon Act (Act), 40 U.S.C. [sec] 276a et seq. For the
following reasons, the Administrator's ruling is affirmed.
I. BACKGROUND
The National Park Service (NPS), U.S. Department of Interior
awarded a construction contract to Mauldin-Dorfmeier
Construction, Inc. on September 10, 1993. The prime contract
called for the demolition of an existing NPS structure [1][2] and
construction of a new warehouse/office, including construction of
a fueling station with installation of underground fuel tanks and
pumps at Yosemite National Park, Mariposa County, California.
The contract was subject to and contained the Act's labor
standards provisions and WD CA93-4. The prime contractor
subsequently awarded Petitioner a subcontract for installation of
the underground fuel tanks and pumps.
Among other classifications, WD CA93-4 -- a multiple wage
schedule applicable to building, heavy and highway construction
in numerous California counties -- contained a classification of
construction laborer with a basic hourly wage rate of $17.91 and
fringe benefits of $6.22. Three other laborer groups -- two
semi-skilled laborer classifications (at rates higher than
construction laborer) and one lower-paid classification for
unskilled cleanup laborers -- were included in WD CA93-4. All
skilled classifications in WD CA93-4 were also listed at a
predetermined wage rate higher than that for construction
laborer.
On April 19, 1994, NPS submitted on Petitioner's behalf a
request for authorization of additional classifications to WD
CA93-4: "fuel pump, tank and hoist mechanic" (at $13.41 per
hour) and "utility worker (installer)." Administrative Record
(AR) Tab B. Petitioner subdivided the utility worker (installer)
classification by requesting the addition of four separate
utility worker classifications (with wage rates varying from
$7.89 to $13.33 hourly), distinguished by six-month experience
periods from an entry level (first six months of employment) to a
fourth level (18-24 months of experience). Id. Included in
Petitioner's conformance request was the additional issue of
whether certain insurance benefits and vacation and holiday pay
allegedly paid by Petitioner should be accepted by the
Administrator as fringe benefits.
Wage and Hour's initial response to NPS's request did not
address the utility worker (installer) classifications, but
focused on the fuel pump, tank, and hoist mechanic classification
request for an hourly wage of $13.41. Wage and Hour's Director,
Division of Wage Determinations replied on June 8, 1994, denying
the "mechanic" classification's rate request on the ground that
the $13.41 hourly rate did not bear a reasonable relationship to
the other rates contained in WD CA93-4, as required under the
regulations at 29 C.F.R. 5.5(a)(1)(v)(A)(3). AR Tab C. Wage and
Hour's June 8 response offered the opportunity to submit
additional information in a request for reconsideration.
NPS supplied additional information concerning the mechanic
classification's duties under the contract. NPS stated that the
fuel pump installer: "assists in setting the tanks in the hole .
. ."; "lays the fiberglass piping"; "installs the control wiring
for the fuel pump"; and makes "the final electrical connections
from the wiring to the pumps . . . ." AR Tab D. On June 29,
1994, NPS provided Wage and Hour additional information
concerning the duties of the four [2][3] requested utility worker
classifications. NPS wrote that "[t]he utility workers are doing
work normally associated with a laborer, i.e., backfilling with a
shovel around pipes, fetching parts for the fuel system mechanic,
etc." AR Tab E.
On September 7, 1994 Wage and Hour issued a ruling
concerning the utility worker and the previously addressed fuel
pump, tank, and hoist mechanic classifications. AR Tab F.
Treated by Wage and Hour as an initial determination with
reconsideration rights -- the Director denied the mechanic and
the utility worker (4th 6 months) classification requests on the
basis that they appeared to encompass work performed by other
classifications already listed in the applicable wage
determination, i.e., plumber, electrician and laborer. Further,
this ruling denied the other three requested utility worker
classifications (which were based on employment experience
levels), because apprentice and trainee classifications can only
be approved when such employees are individually registered in a
training program previously approved by appropriate federal or
state agencies. Id.
NPS submitted Petitioner's request for reconsideration of
this ruling to Wage and Hour. Petitioner objected to conformance
of the mechanic classification to a skilled classification --
plumber -- in the applicable wage determination. See AR Tab G.
In a December 7, 1994 letter to the prime contractor (AR Tab I),
Petitioner objected to conformance of a portion of its work to
the electrician classification in WD CA93-4.
Wage and Hour's final ruling on this conformance matter was
issued on March 5, 1995. AR Tab A. In this decision, Wage and
Hour retracted its earlier conclusions concerning work that
appeared to be performed by plumbers and electricians. The
Deputy Assistant Director concluded that the administrative
record supported a conclusion that the disputed wiring and pipe
work duties "are not covered by any of the skilled
classifications in the WD. . . ." AR Tab A at 2. However, Wage
and Hour continued, since the duties "most closely resemble those
of laborers, we are allowing the fuel pump, tank, and hoist
mechanic and utility workers to be conformed to the general
laborer wage rate in the Contract WD ([$]17.91 plus $6.44 in
fringe benefits)." Id. This ruling reiterated the reasoning in
previously denying three of the four utility worker
classifications on the ground that employees were not
individually registered in an approved apprentice or trainee
program. Thus, the Deputy Assistant Administrator stated, "a
classification may not be subdivided based upon skill or level or
experience." Id.
Petitioner seeks the Board's review of the March 5, 1995
determination. Primarily, Petitioner objected to Wage and Hour
conforming the disputed subcontract work to the union rate for
construction laborer contained in WD CA93-4 for Mariposa County,
California.[3]
[4] II. DISCUSSION
The administrative record in this conformance dispute
adequately documents the fact that no interested party --
Petitioner included -- filed a timely challenge to the
substantive correctness of WD CA93-4 prior to award of the prime
contract at issue. The proper time to request amendment or
correction of a wage determination's prevailing classifications
or rates is prior to the award of contract (or, where
appropriate, beginning of construction). 29 C.F.R. 1.6(c)(3);
J.A. Languet Construction Company, WAB Case No. 94-18, Apr. 27,
1995, slip op. at 9; ICA Construction Corp. and Tropical Village,
Inc., WAB Case No. 91-31, Dec. 30, 1991, slip op. at 6.
Absent a timely challenge, conformance is the only procedure
for amendment of a contract wage determination. Id. In this
case, WD CA93-4 was applicable to building and heavy construction
in Mariposa County, California and there is no dispute that the
subcontract work -- installation of a new fuel tank, control and
pump system in conjunction with construction of a
warehouse/office structure -- properly falls under WD CA93-4.
See All Agency Memorandum No. 130, Mar. 17, 1978.
Therefore, Petitioner's requested classifications and rates
could only be approved by Wage and Hour if they met all three of
the conformance regulation's requirements appearing at 29 C.F.R.
5.5(a)(1)(v)(A):
(1) The work to be performed by the classification
requested is not performed by a classification in the
wage determination; and
(2) The classification is utilized in the area by the
construction industry; and
(3) The proposed wage rate, including any bona fide
fringe benefits, bears a reasonable relationship to the
wage rates contained in the wage determination.
Here, Wage and Hour determined -- based on NPS's descriptions --
that the disputed work most closely resembled the work performed
by the classification of construction labor, which was listed in
WD CA93-4. The Board concludes that Wage and Hour's
characterization of the work is reasonable, supported by the
record, and should be affirmed as being within the agency's broad
discretion to review conformance requests. Tower Construction,
WAB Case 94-17, Feb. 28, 1995; see also Kord's Metro Services,
BSCA Case No. 94-06, Aug. 24, 1994.
The utility worker classifications were described by the NPS
as "doing work normally associated with a laborer, i.e.
backfilling with a shovel around [4][5] pipes, fetching parts for
the fuel system mechanic, etc." AR Tab E. These duties are
reasonably seen as consistent with the construction laborer
duties as described in WD CA93-4. Compare, AR Tabs E and H, at
31-34. Moreover, construction laborer is the only classification
in the applicable wage determination -- excluding skilled trades
(such as plumber and electrician) and the other, non- or
semi-skilled laborer classifications -- which can be reasonably
compared to the disputed work performed by Petitioner's
"mechanic" and "utility worker" classifications.
As previously noted, Petitioner's primary objection raised
before the Board is the contention that Wage and Hour conformed
the requested classifications to WD CA93-4's union construction
laborer rate, rather than to rates prevailing for fuel tank work
in Mariposa County. In the context of a challenge to the wage
determination, this objection might be properly lodged, but in a
conformance proceeding it is misplaced. The conformance process
is not a de novo proceeding to retroactively determine the
prevailing wage for a particular job. Sumlin & Sons, Inc., WAB
95-08, Nov. 30, 1995. Rather it is a procedure by which the
Administrator may establish a wage rate for a classification
missing from the wage determination, but necessary to perform the
contract. In establishing a conformed rate the Administrator is
given broad discretion. Clark Mechanical Contractors, Inc., WAB
Case No. 95-03, Sept. 29, 1995. The Administrator's decision
will be upset only if it is inconsistent with the regulations.
Applying the regulations to the facts of this case, the
Administrator found that the work was not performed by any of the
classifications in the wage determination and, therefore, the
first prong of the conformance regulation was satisfied.
Although the Administrator did not find that construction
laborers performed this work in the area, the Administrator did
conclude that the work performed was similar in skill level and
duties to those of a construction laborer. Therefore, in
selecting the construction laborer rate as the conformed rate,
the Administrator was acting consistent with the regulatory
requirement that the conformed rate bear a reasonable
relationship to the rates contained in the wage determination.
By choosing the lowest rate above unskilled labor and below that
of a skilled trade in the wage determination, the Administrator
was following well established practice which the Board has
previously approved.
As noted above, if Petitioner had reason to believe that the
rates in the wage determination were out of keeping with
prevailing practice in the area, Petitioner had the opportunity
and the obligation to challenge the wage determination. The
evidence that Petitioner would have the Board consider may have
been relevant in a challenge to the wage determination, but it is
largely irrelevant in the context of a conformance proceeding.
In a conformance proceeding the Administrator need only act
reasonably and consistent with the regulations. Having failed to
challenge the initial wage determination, the Petitioner cannot
not now be heard to complain that the conformance process did not
yield a rate that precisely reflects prevailing [5][6] practice
in the area. See Clark Mechanical Contractors, Inc., supra, slip
op. at 5; Sumlin & Sons, Inc., supra.
The Board also affirms Wage and Hour's alternative ground
for denying the utility worker classifications, which were merely
subdivisions of a single classification based on length of
experience. Petitioner's proposed utility worker classifications
were functional equivalents of apprentice or trainee
classifications and there is no record of Petitioner's employees
being registered in an approved program. See, North Star
Industries, Inc., WAB Case No. 92-02, Sept. 30, 1992.
Having affirmed Wage and Hour's conformed rate at the wage
determination's construction laborer rate, there remains a final
issue for consideration. During the conformance proceeding
below, Petitioner alleged that it should be credited for payment
of insurance, vacation, and holiday benefits. The record
contains no information concerning this allegation. NPS reported
that Petitioner's certified payrolls indicated a fringe benefit
payment "in cash but do[] not tell us what amount." AR Tab E.
Wage and Hour's final ruling does not address the questions of
whether these benefits were, in fact, paid or whether they are
properly creditable.
For the foregoing reasons, the final conformance ruling of
March 5, 1995 is affirmed. The questions of whether Petitioner
paid its employees additional fringe benefit amounts in cash or
otherwise -- and whether these amounts are creditable as wages or
fringe benefits within the meaning of the Act -- is hereby
remanded to the Wage and Hour Division for a final ruling or
proceedings consistent with 29 C.F.R. Part 5.
BY ORDER OF THE BOARD:
Karl J. Sandstrom, Presiding Member
James C. Riley, Member
Joyce D. Miller, Alternate Member
Gerald F. Krizan, Esq.
Executive Secretary[6]
