. (Massman Construction was a
subcontractor of Johnson-Massman, Inc. S-1.) Pursuant to the requirements of the DBA, Wage
Determination (WD) No. 82-LA-230 was incorporated into Respondents' prime contract and
subcontract.
Respondents were signatories to a collective bargaining agreement
(CBA) known as the Project Agreement Old River Control Auxiliary Structure . JX-3
and 4, S. ¶5. Unions signatory to the CBA included locals of the International Union of
Operating Engineers, United Brotherhood of Carpenters and Joiners of America, Laborers'
International Union of North America, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Operative Plasterers and Cement Masons' International
Association and the International Association of Bridge, Structural and Ornamental Ironworkers.
JX-3. WD No. 82-LA-230 reflects these locals' CBA rates as prevailing. JX-1, 2, 3. WD 82-LA-230 contained the following proviso with regard to welding (a craft not listed separately in the
WD):
WELDER - receive rate prescribed for craft performing operation to which
welding is incidental.
JX-1, 2. The CBA contains no mention of welding.
A compliance officer of the Wage and Hour Division investigated
Respondents' labor standards performance on the contract and concluded that between April 10,
1983 and August 7, 1983 three employees (Jerry Herbert, Lawrence Hebert and Harry E.
Ploschenski) worked -- and should have been classified and paid -- as welders while performing
welding work in the performance of the construction contract. Each of the three affected
employees was classified and paid for this work at the WD's laborer wage rate of $7.73 per hour,
including fringe benefits. One employee (Lawrence Herbert) performed welding nearly full-time
[Page 3]
(an average of 36 hours per week; JX-7) on a steel ramp barge for the entire four month period.
(The other two employees welded for a total of one and eight days, respectively.) Respondents
conceded the hours worked by the employees and the fact that they performed welding on a steel
ramp barge on the project. JX-4 at ¶¶ 10, 11.
The Wage and Hour Division assessed back wages for all three
workers based on the allegation that their disputed work was "incidental" to the
ironworker's classification and therefore should have paid at the WD's hourly rate (including
fringe benefits) of $11.05 for the ironworker classification. Upon Respondents' refusal to pay the
back wage assessment, Wage and Hour referred this matter for hearing. By the parties'
agreement, this matter was decided below on the parties' exhibits and briefs, without a hearing.
The ALJ ruled that the record did not support the conclusion that the welding performed by the
three employees should have been classified as within the scope of duties for the ironworker
classification.
The Administrator filed the instant Petition for Review with the
Wage Appeals Board (WAB), prior to creation of the Administrative Review Board.
See n.1, supra . Petitioner seeks reversal of only that portion of the ALJ's
findings and conclusions regarding the proper classification and pay for Lawrence Herbert, who
performed welding full-time during the four months of the investigation period. AS at 5, 7.
DISCUSSION
As noted by the ALJ, the facts of this matter are,
"basically," not in dispute. D. and O. at 4. It is our conclusion that the ALJ erred
in his application of DBA area practice legal principles to these undisputed facts. Respondents'
federal construction contract was subject to the terms of WD No. 82-LA-230. Although there is
no specific language establishing a prevailing rate for a classification of welder, we find that the
WD contains operative language governing proper classification of employees performing welding.
This language is the WD's notation that: "WELDER - receive[s] rate prescribed for craft
performing operation to which welding is incidental." JX-1.
The ALJ held that the employees performing welding on the contract
were properly paid as laborers. D. and O. at 8. The ALJ's analysis of the foregoing language
in WD 82-LA-230 concerning the proper classification and wages for welders is clearly flawed
given that he begins and ends the analysis with the faulty premise that the full-time welding
performed by Lawrence Herbert was "incidental" to his employment as a laborer.
We note initially that the regulations implementing the DBA (and its
related Acts) generally define the terms "laborer" and "mechanic," the two
[Page 4]
broad categories of employees subject to the protections of the DBA. 29 C.F.R. § 5.2(m)
provides:
The term laborer or mechanic includes at least those
workers whose duties are manual or physical in nature (including those workers
who use tools or who are performing the work of a trade . . . .
Beyond this, the regulation does not define the scope of the work which a worker may
perform (under the DBA) and still be properly classified as a laborer. Exact delineation of the
duties laborers may perform and the tools they may utilize is a matter defined on a case by case
basis as reflected by the particular area practice prevailing in a locality. In the instant case, the
duties of laborers are not specified in the WD. However, since the wage rates found prevailing
in the area are those contained in the project agreement CBA, proper classification of duties under
the WD must be determined by resort to the area practices of those unions signatory to the CBA.
Fry Brothers Corp. , WAB Case No. 76-06, June 17, 1977. Thus, we conclude that
this matter is not -- as alleged by Respondents -- a "jurisdictional dispute" between the
ironworkers and the laborers. Rather, this is a matter to be decided based upon the appropriate
area practice for the disputed work.
Here, the CBA specifies that the laborer classification includes not
only common laborers, but also rakers, power tool operators, formsetters, powdermen, and
laborer foremen. No mention is made of laborers under the agreement performing work
associated with welding. The WD itself lists only the laborer subclassifications of common laborer
and air tool operator. Thus, the ALJ erred in concluding that Lawrence Herbert's welding work
was "incidental" to his duties as a laborer, where both the CBA and WD 82-LA-230
demonstrate that none of the laborers' subclassifications perform welding.
The fact that the parties stipulated that Lawrence Herbert was hired
by Respondents as a "laborer/welder" is simply not relevant to determining appropriate
classifications under WD 82-LA-230. First, there is no "laborer/welder" classification
in the WD 82-LA-230. Secondly, where an employee spends more than a minimal amount of time
performing duties of a classification other than that for which the employee was hired, that
employee is due the prevailing wage appropriate to the classification. Thus, the regulation at 29
C.F.R. § 5.2(m) offers this analogous guidance with respect to foremen (who otherwise
would not be subject to DBA coverage):
Working foremen who devote more than 20 percent of their time during a
workweek to mechanic or laborer duties . . . are laborers and mechanics for the
time so spent.
Accordingly, regardless of the fact that Respondents hired Lawrence Herbert as a
"laborer," his actual -- nearly full-time -- duties as a "welder" were clearly
[Page 5]
not minimal and Respondents' classification and payment of this employee as a laborer was not
appropriate.
Moreover, the record in this case clearly shows that Ironworkers in
the locality claim jurisdiction over the type of work being performed by Lawrence Herbert. The
business agent for the Ironworker's local union produced a statement -- introduced as an exhibit --
claiming jurisdiction over the disputed work. He stated that "[i]f we had been informed of
work being done at the time of building a ramp to the barge . . . [Ironworkers'] Local 623 would
[have taken] the position that the work belonged to them." JX-11. The ALJ characterized
this exhibit as "ambiguous" and stated that it "has little probative value in the
determination of this case." D. and O. at 7. We disagree. The business agent's statement
clearly refers to the project's ramp work and specifically claims that the work is that of the
Ironworkers in the area. Moreover, Respondents did not proffer any evidence disputing the
Ironworker's claim to the work. Nor did Respondents proffer any evidence that the Laborers in
the locality claimed the work in dispute. Thus, substantial uncontroverted evidence of record
supports the conclusion that the ramp work was that of Ironworkers and that Lawrence Herbert's
welding was "incidental" to that classification.
Respondents contended that the classification of laborer should be
considered a "craft" within the meaning of the WD's language regarding welding (and
therefore, the affected employees were performing welding "incidental" to their
employment as laborers). However, here, the disputed work was shown to be that of Ironworkers
and the disputed welding was clearly "incidental" to the Ironworker's craft, and not
that the laborer's classification. For the foregoing reasons, the ALJ's D. and O. as it relates to
Lawrence Herbert is reversed.
SO ORDERED.
David A.
O'Brien
Chair
Karl J. Sandstrom
Member
Joyce D. Miller
Alternate Member
[ENDNOTES]
1 On April 17, 1996, the
Secretary of Labor redelegated authority to issue final agency decisions under, inter alia , the
Davis-Bacon and Related Acts and their implementing regulations to the newly created Administrative
Review Board. Secretary's Order 2-96 (Apr. 17, 1996), 61 Fed. Reg. 19978, May 3, 1996. See
also , 29 C.F.R. Part 7 (1996). Secretary's Order 2-96 contains a comprehensive list of the statutes,
executive order, and regulations under which the Administrative Review Board now issues final agency
decisions.
2 "JX" refers
to the ALJ hearing exhibits submitted jointly by the parties; "S" refers to stipulations submitted
by the parties; "SA" refers to the Statement of the Administrator.