We have no information concerning
the average size of LVI firms in the subject area. We do not know if the Occupational
Compensation Surveys used by Wage and Hour in developing the other cases' Wage
Determinations provided appropriate information.
It is not our intention to reverse the previous case law whereby the
WAB affirmed the Administrator's disapproval of conformance requests when the work to
be performed by the requested classification was performed by a classification already in
the applicable WD. Sumlin and Sons, Inc., WAB Case No. 95-08, Nov. 30, 1995;
J. A. Languet Construction Co., WAB Case No. 94-18, Apr. 27, 1995.
Rather, we are troubled by the apparent practice of contracting
agencies awarding Federal or Federally-supported contracts knowing that a certain locally
prevailing work classification is not included in the applicable WD. In these instances, not
only is the selected bidder at risk with regard to the potential labor costs for the project, but
it is unfair to other potential competing bidders who conclude that the established
classifications are the only ones to be used in structuring their bids.
The WAB recognized that it would establish an unfortunate
precedent to permit contractors to ignore Labor Department procedures regarding the
establishment of wage predeterminations and to gamble that additional classifications
would be added subsequent to the award of a contract, notwithstanding the fact that
classifications in the WD could govern the work in question. Inland Waters Pollution
Control, Inc., WAB Case No. 94-12, Sep. 30, 1994. Too often this practice is
detrimental to the material interests of subcontractors who rely on the assurances of
contracting agencies and prime contractors with regard to the probable success of requests
to conform these additional classifications.
It is therefore critical for the Board, if it is to affirm the
Administrator's disapproval of a request for a conforming classification, that the
classifications in the WD are generally complete and supported by the prevailing practice
in the area and by evidence in the record. We do not find such evidence in the record
before us.
[Page 6]
As noted above, Audio-Video is one of six cases the Board
is considering in this consolidated proceeding involving conformance requests for the
additional generic classification of low voltage workers to Wage Determinations. The
O'Neal Construction Co., Sensormatic Electronics Corporation, Executone
Information Systems, Inc., and Co Com Cabling Systems cases pertain to
requests for conformance procedures regarding low voltage electrical systems installations.
The Webb Electric Company case pertains to lightning protection installation
systems which apparently involves little or no electrical work per se , as contrasted
to lightning protection systems upgrading work.
The Board finds that Wage and Hour has not shown that wage and
area practice surveys were conducted to substantiate a wage determination that electricians
perform low-voltage installation or lightning protection system installation as a matter of
prevailing practice in the six cases considered in this Decision and Order of Remand.
Further, given the WAB's holding in Alarm Control and Wage and Hour's
subsequent determination to adopt in that case a "non-enforcement" position
with regard to the low voltage installer classification, these six rulings may well represent
a departure from past determinations such that remands for additional consideration is
warranted in each case.
In reaching our conclusions and issuing our Order of Remand in
these six cases we do not rely on the regulation at 29 C.F.R. §5.14 which provides
for "variations, tolerances, and exemptions from parts 1 and 3 of this subtitle and
[Part 5]." Our ruling here is not a variation, tolerance, or exemption within the
meaning of 29 C.F.R. §5.14, since we have concluded that these Wage and Hour
rulings have not been shown to consider actual area practices or departed from the past
practice adopted in the Alarm Control case.
We render this Decision and Order of Remand in light of the
authority provided at 29 C.F.R. §7.1 which provides that the Administrative Review
Board "shall act as fully and finally as might the Secretary of Labor concerning such
matters." Our responsibility, derived from the Secretary's statutory authority,
requires that:
wages . . . paid [to] various classes of laborers and mechanics . . . shall be
based upon the wages . . . determined . . . to be prevailing for the
corresponding classes of laborers and mechanics employed on projects
similar to the contract works in the city, town, village, or subdivision ... of
the State in which the work is to be performed. . . .
40 U.S.C. §276a.
[Page 7]
This responsibility is likewise found in the pertinent regulations at
29 C.F.R. §1.1. Wage Determinations which are inaccurate or incomplete by failing
to reflect the prevailing wages for various jobs because the underlying surveys are no
longer current with regard to the established practice within a locality, defeat the purpose
of the Act. Workers on Federally funded or Federally-assisted projects are ensured that
their wages are to be no less than workers doing the same jobs on other projects. However,
workers on projects covered by the DBRA are not entitled to wages that are not reflective
of the prevailing local practice for the same job.
This remand is for the purpose of providing Wage and Hour the
opportunity to reconsider the requests for conformed classifications; to formulate a
coherent policy to address these and other low voltage installer conformance requests in
the future; and to establish consistent Wage Determination procedures in order to provide
for accurate surveys of low voltage installers' and electricians' construction work in the
future.
We recommend that Wage and Hour evaluate the question of the
proper division of labor between low-voltage installers and electricians in every Wage
Determination for which a contracting agency requests such a classification, or where the
nature of a proposed Federal or Federally-assisted construction project indicates that there
is a substantial likelihood that such low-voltage system installation work will be performed.
In reconsidering these matters, we recommend that Wage and Hour
look to the underlying facts in each case, to determine whether prevailing wage information
was sought concerning low voltage installers in each of the areas in the last applicable
survey period; whether low voltage installation or supplier/installer companies had
requested to be made a part of the Wage Determination processes; and whether there is a
need in a subject locality to survey for low voltage installer classifications in order to better
effectuate the purpose of the DBRA to be a "mirror" of locally prevailing
construction wage rates and employment practices. See, The Griffith Company ,
supra; see also , Rite Landscape , WAB Case No. 83-03, Oct. 18, 1983;
Hillside Gardens, Inc., et al. , WAB Case No. 90-32, June 21, 1991, slip op. at 2.
III. ORDER
These matters are remanded to the Wage and Hour Division for
further consideration. The Administrator is directed to complete reconsideration in these
cases within 120 days of the date of this Decision and Order of Remand. The
[Page 8]
Administrator shall file a report of the action taken and/or a copy of any new ruling with
the Board on the date of issuance.
SO ORDERED.
DAVID A. O'BRIEN
Chair
KARL J. SANDSTROM
Member
JOYCE D. MILLER
Alternate Member
[ENDNOTES]
1 Wage Appeals Board; see
29 C.F.R. Part 7 (1995). On April 17, 1996, a Secretary's Order was signed delegating
jurisdiction to issue final agency decisions under various statutes and an executive order to the
Administrative Review Board. 61 Fed. Reg. 19978 (May 3, 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. Final procedural revisions to the
regulations implementing this reorganization were also promulgated on that date. 61 Fed. Reg.
19982.
2 The regulations at 29 C.F.R.
§7.13 titled Consolidations provides in pertinent part:
Upon its own initiative . . . the Board may consolidate in any proceeding or
concurrently consider two or more appeals which involve . . . issues which are the
same or closely related, if it finds that such consolidation or concurrent review will
contribute to a proper dispatch of its business and to the ends of justice. . . .
3 The Occupational
Compensation Survey cover sheet was attached to Wage and Hour's response to Petitioner's
Freedom of Information Act (FOIA) request concerning the Wage Determination. We note that
the date of the Survey is subsequent to the date of the underlying contract with Gilbertson, but
assume that since it was sent pursuant to Petitioner's FOIA request that such information was
consistent with the materials used by Wage and Hour staff to develop the applicable WD.
Administrative Record submitted by Petitioner, Tab 3.