In re: Winfield, WV Lock and
Dam Project, Army Corps of Engineers
Contract No. DACW69-94-0027
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Petitioner:
Carl E. Hostler, Esq., Hostler & Donnelly, L.C., Charleston, West
Virginia
Charles F. Donnelly, Esq., Donnelly, Carbone & Kettler,
P.L.L.C., Charleston, West Virginia
For the Respondent:
Marva M. Peace-Jackson, Esq.; Douglas J. Davidson, Esq.; Steven J.
Mandel, Esq.; U.S. Department of Labor, Washington, D.C.
For the Intervenor:
Terry R. Yellig, Esq., Sherman, Dunn, Cohen, Leifer & Yellig,
P.C., Washington, D.C.
DECISION AND ORDER OF REMAND
Millwright Local Union 1755, United Brotherhood of Carpenters and Joiners
of America (the Local), petitions for review of administrative action by the Administrator, Wage and
Hour Division, Employment Standards Administration, U.S. Department of Labor, under the Davis-
Bacon Act, as amended, 40 U.S.C. §§276a 276a-7 (1994). The Administrator's
designee denied the Local's request to modify a February 1997 decision in which the Wage and Hour
Division (Division) added a conformed "millwright" classification and wage rate of
$24.11/hr. (wages and fringe benefits) to the "heavy" wage determination applied to the
construction of a lock-and-dam project at Winfield, West Virginia.
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Earlier, in 1994, the Division had omitted the millwright classification from
the original wage determination when it was published, even though the Division had received notice
of the then-current collectively-bargained wage rate for millwrights of $26.13/hr. When adding the
millwright classification through the conformance process, the Administrator selected a wage rate
identical to the rate for the carpenter classification ($24.11/hr.) already included in the wage
determination, rather than a rate closer to the negotiated millwright rate.
As we discuss below, the Administrator's decision is affirmed in part,
specifically the Administrator's determination that the disputed wage determination would not be
modified retroactively. However, because the Administrator did not address adequately the Local's
request for reconsideration of the conformance action, this matter must be remanded to the
Administrator for a supplemental decision.
BACKGROUND
A. Regulatory Framework
The Davis-Bacon Act requires that the advertised specifications for
construction contracts to which the United States is a party must contain a provision stating the
minimum wages to be paid the various classifications of mechanics or laborers to be employed under
the contract, based on wage rates determined by the Secretary of Labor to be prevailing in the
geographic locality where the contract is performed. 40 U.S.C. §276a. The function of
issuing minimum wage determinations is delegated under the implementing regulations to the
Administrator of the Wage and Hour Division. 29 C.F.R. §1.1(a) (1999). The minimum wage
rates contained in the determinations derive from rates prevailing in the locality where the work is
to be performed or from rates applicable under collective bargaining agreements. 29 C.F.R.
§1.3. Wage determinations are incorporated into bid solicitations by contracting agencies.
See 29 C.F.R. §5.5(a); see also 48 C.F.R. §36.213-3(c) (1999).
There are two different ways that contracting agencies obtain wage
determinations for their construction projects. When wage patterns for a particular type of
construction in a locality are established and when a large volume of procurement is anticipated in
the area for the construction, the Administrator may furnish notice in the Federal Register of a
"general" wage determination. 29 C.F.R. §1.5(b). General wage determinations
are published in a special Government Printing Office document. Contracting agencies may use
general wage determinations without notifying the Administrator. Id. Alternatively,
contracting agencies may ask the Wage and Hour Division to issue a wage determination for
particular contracts to cover specified employment classifications on an individual construction
project. 29 C.F.R. §1.5(a). These issuances are designated "project" wage
determinations. The instant case involves one of the Division's general wage determinations.
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Bidders who believe that a wage determination is erroneous may request
reconsideration by the Administrator under procedures established in the 29 C.F.R. Part 1 Davis-
Bacon regulations. 29 C.F.R. §1.8. Actions modifying a general wage determination normally
are "effective with respect to any project to which the determination applies, if notice of [the
action] is published before contract award (or the start of construction where there is no contract
award)" except that "a modification to an applicable general wage determination, notice
of which is published after contract award (or after the beginning of construction where
there is no contract award) shall not be effective." 29 C.F.R. §1.6(c)(3)(vi)
(emphasis added). See 29 C.F.R. §1.6(c)(2)(A) (in instances of competitive bidding,
modifications received less than 10 days before the opening of bids shall be effective unless
insufficient time remains to notify bidders of the modification).
On occasion, contract performance may require the addition of trade
classifications after the period permitted for modification of the wage determination through the
normal review process. Job classifications are added to a wage determination after a
construction contract has been awarded through a "conformance action," under
procedures found in the 29 C.F.R. Part 5 regulations. The regulations provide that the contracting
agency (through its contracting officer) "shall require that any class of laborers or mechanics
which is not listed in the wage determination and which is to be employed under the contract shall
be classified in conformance with the wage determination." 29 C.F.R. §5.5(a)(1)(v)(A)
(1999). The wage rates paid to any employment classification being added must bear a
"reasonable relationship to the wage rates contained in the wage determination." 29
C.F.R. §5.5(a)(1)(v)(A)(3).
A conformance action is effected in one of two ways, depending upon whether
the contractor, the employees being added to the wage determination and the contracting officer
agree or disagree as to the classification and wage rate. If the contractor, the employees (or their
representatives) and the contracting officer agree on the additional classification and wage rate, the
contracting officer submits a report of the action taken to the Administrator who then will approve,
modify or disapprove the conformance. 29 C.F.R. §5.5(a)(1)(v)(B). In the event that the
principals disagree, "the contracting officer shall refer the questions, including the views of
all interested parties and the recommendation of the contracting officer, to the Administrator for
determination." 29 C.F.R. §5.5(a)(1)(v)(C). Any party who disagrees with the
Administrator's determination may appeal the decision to this Board. 29 C.F.R. §7.1 (1999).
B. Facts
The U.S. Army Corps of Engineers (contracting agency) contracted with Al
Johnson Construction Company (Al Johnson or contractor) to build a lock-and-dam project in
Winfield, West Virginia. AR Tab P.1[Page 4]
1 The abbreviation AR refers to
documents contained in the Administrative Record and identified by AR tab.
2 This exhibit is captioned
"A Pictural Comparison of the Millwright Trade to the Carpenter Trade in Regards to Work
Performed on Locks." It was submitted to the Board well after the Administrator issued her
December 23, 1997 decision letter and was not part of those deliberations. We conclude that the
exhibit, which is demonstrative in nature, did not require consideration by the Administrator.
COBRO Corp., ARB Case No. 97-104, July 30, 1999, corrected, Sept. 13, 1999,
slip op. at 12 n.10.
3 On at least four occasions,
including in January 1992, February 1993 and December 1993, the Division received notification
that millwrights were subject to an elevated collectively-bargained wage rate. AR Tabs K, L, M.
In December 1993, the Division was notified that the local negotiated rate for millwrights increased
to $26.13/hr. (wage and fringe benefits) effective June 1993. AR Tab A at 3; Tab H.
4 The project agreement is not
found in the Administrative Record in this case. In reviewing final decisions of the Administrator
in Davis-Bacon Act cases, the Administrative Review Board is charged with providing appellate
review of the Administrator's decisions "on the basis of the entire record before it." 29
C.F.R. §§7.1(e), 7.9(f). Our primary focus is on the record developed before the
Administrator which informed the Administrator's deliberations. To the extent that we review extra-
record materials that accompany a petition for review or other pleadings i.e., materials that
were not submitted to the Administrator previously our limited concern is to decide whether the
materials raise questions that warrant a remand to the Administrator for additional evaluation.
SeeDep't of the Army, ARB Case Nos. 98-120/121/122, Dec. 22, 1999, slip op. at
11, n.10 (under the Service Contract Act, 41 U.S.C. §§351-358 (1994)); COBRO
Corp., ARB Case No. 97-104, slip op. at 12, n.10 and cases cited therein (same); see also
29 C.F.R. §7.1(e).
5 General decision No. WV930003
(Mod. 10) for heavy and highway construction projects, which omitted the millwright classification
and rate, was published in January 1994. The instant contract bid opening occurred on February 8,
1994; the contract was awarded on May 27, 1994; and construction began in August 1994.
Millwrights did not commence work on the project until April 1996. By then, the Local had became
aware of the omission, and in June 1996 it complained to the contracting agency. Al Johnson
requested conformance in August 1996.
6 Although we affirm the
Administrator's action on this count without regard to whether the Local had actual knowledge that
the millwright wage rate was missing from the wage determination, we note that business
representatives for a district council of carpenters and affiliated locals (including Millwright Local
Union 1755) attended pre-bid and pre-job meetings, as did the business manager of Millwright Local
Union 1755. Specifically, a pre-bid meeting of management and labor was convened on December
9, 1993, for purposes of discussing the Heavy and Highway Construction Project Agreement and of
"negotiat[ing] an addendum specific to the Winfield project." The addendum covered
wage rates and working conditions at the project. A pre-job meeting was convened on August 9,
1994, for purposes of signing the project agreement. According to Al Johnson, the issue of the
millwright classification and wage rate was not raised at either meeting. See AR Tab P at
2-3 and attachments 4-7.
7 The other sections of the Code
relating to the Davis-Bacon Act that were issued in 1964 also provide no clear guidance on this score. For
example, the Part 1 regulations (which were published simultaneously with the Part 5 conformance
procedure) indicate that when compiling prevailing wage schedules, the Department gathers wage data from
"contractors, contractors' associations, labor organizations, public officials, and other
interested parties." See 29 C.F.R. §1.3(a)(1966)(emphasis added). This language
suggests that the Department in 1964 may have viewed the term "interested party" as including
labor unions. On the other hand, the Part 7 regulations ("Practice Before Wage Appeals Board")
that were published in final form only a few months later in June 1964 provide that wage determinations
could be appealed by "interested persons" (explicitly defined to include labor unions), while
conformance decisions could be appealed by "interested persons or parties." Compare
29 C.F.R. §§7.2(b) and 7.10(c)(1966). This latter formulation may suggest that the term
"interested party" (found in the conformance regulation) was not co-extensive with the term
"interested persons" (defined in 29 C.F.R. §7.2(b)), and thus might not have contemplated
union input into the initial conformance process under §5.5 (involving "interested
parties"), even while giving unions the right to appeal the ultimate conformance decision.
8 Board Member E. Cooper Brown
did not participate in the consideration of this case.