Print This Page
E-mail This PageEVER GREEN CONSTRUCTION, INC., WAB No. 86-04 (WAB July 21, 1986)
|
Subscribe to E-mail Updates
|
|
| DOL Home > OALJ > Davis-Bacon Act/Service Contract Act > EVER GREEN CONSTRUCTION, INC., WAB No. 86-04 (WAB July 21, 1986) |
USDOL/OALJ Reporter
CCASE:
EVER GREEN CONSTRUCTION
DDATE:
19860721
TTEXT:
~1
[1] WAGE APPEALS BOARD
UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, D.C.
In the Matter of
EVER GREEN CONSTRUCTION, INC. WAB Case No. 86-04
Offutt Air Force Base, Nebraska Dated: July 21, 1986
BEFORE: Alvin Bramow, Chairman, Thomas X. Dunn, Member
Stuart Rothman, Member
DECISION OF THE WAGE APPEALS BOARD
This case is before the Wage Appeals Board on the petition
of Ever Green Construction, Inc., (hereinafter Ever Green) seeking
review of a rule of the Assistant Administrator, Wage and Hour
Division, dated January 7, 1986. This ruling denied the issuance
of an additional classification and wage rate for lawn sprinkler
installers at $4.00 per hour to apply to wage determination
No. NE84-4029.
Ever Green was awarded a contract by the Air Force in August,
1985, to install an irrigation system at Offutt Air Force Base,
Nebraska. The contract was subject to the Davis-Bacon Act and the
applicable regulations. Wage determination No. NE84-4029 was
incorporated in the contract. The wage determination did not
contain a wage rate for the lawn sprinkler installer
classification. [1]
~2
[2] Promptly after contract award Ever Green requested the
Department of the Air Force, the contracting agency, to approve
the lawn sprinkler installer classification at $4.00 per hour.
On November 8, 1985, the Air Force denied the request based on
a Department of Labor finding that the proposed hourly wage
rate did not bear a reasonable relationship to other
classifications and wage rates contained in wage determination
No. NE84-4029.
Ever Green requested reconsideration from the Assistant
Administrator, Wage and Hour Division, who in a January 7, 1986
letter reaffirmed the finding that any wage rate less than the
rate listed for the unskilled laborer's classification in the
wage determination could not be approved. The unskilled laborer's
wage rate listed in NE84-4029 was $9.70 plus $1.80 in fringe
benefits.
On February 5, 1986, Petitioner filed a Petition for Review
of the Assistant Administrator's ruling with the Wage Appeals
Board. Ever Green in its petition contends that the prevailing
wage for lawn sprinkler installers in Omaha and Sarpy County,
Nebraska, where Offutt Air Force Base is located, is $4.00 per
hour with no fringe benefits. It is also alleged that the lawn
sprinkler installer's work is separate and distinct from the
unskilled laborer's work. [2]
~3
[3] The Wage Appeals Board considered this appeal on the basis
of the Petition for Review filed by Ever Green, and a Statement
on behalf of the Assistant Administrator, and the record of the
appeal before the Wage and Hour Division, filed by the Solicitor
of Labor. No request for an oral hearing was received by the
Board.
* * *
The Wage Appeals Board reaffirms its holding in Rite Landscape
Construction Co., Inc., WAB Case No. 83-03 (October 18, 1983). This
decision held that the only method by which a contracting agency or
the Wage and Hour Division can provide additional classifications
which have not been listed in the wage determination made
applicable to the contract and which the contractor needs to
perform the contract is in accordance with the Department of
Labor's Regulation at 29 CFR [sec] 5.5(a)(1)(ii)(A) which reads as
follows:
(ii)(A) The 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. The contracting officer shall approve
an additional classification and wage rate and
fringe benefits therefor only when the following
criteria have been met:
(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. [3]
~4
[4] This Board further held in Rite Landscaping that:
To give any meaning to the words "shall be classified
or reclassified conformably to the wage determination
in 29 CFR 5.5(a)(1)(ii), the proposed wage rates
must bear some reasonable relationship to the wage
rates contained in the wage determination. This
does not mean that the rate must be an identical
rate to one in the wage determination. In fact,
it could even be lower than any rate in the wage
determination. But certainly it must be within
close proximity to those contained in the contract
specifications.
Here, the rate of $4.00 per hour as requested by petitioner
certainly does not meet the criterion of "reasonable relationship"
to the other wage rates contained in the contract.
However, it appears to the Board that the additional
classification procedure may not be controlling under the factual
situation herein. It may be that the wage determination issued
is erroneous and that a corrected decision should be provided
and made applicable to the project. A party may challenge a
wage determination after contract award under those circumstances
which come within the Department of Labor's regulation 29 CFR [sec]
1.6(f). This regulation reads as follows:
(f) The Administrator may issue a wage determination
after contract award or after the beginning of
construction if the agency has failed to incorporate
a wage determination in a contract required to
contain prevailing wage rates determined in
accordance with the Davis-Bacon Act, or has used a
wage determination which by its terms or the
provisions of this part clearly does not apply to
the contract. Further, the Administrator may
issue a wage determination which shall be applicable
to a contract after contract award or after the
beginning of construction when it is found [4]
~5
[5] that the wrong wage determination has been
incorporated in the contract because of an
inaccurate description of the project or its
location in the agency's request for the wage
determination. Under any of the above circumstances,
the agency shall either terminate and resolicit
the contract with the valid wage determination
or incorporate the valid wage determination
retroactive to the beginning of construction through
supplemental agreement or through change order, provided
that the contractor is compensated for any increases
in wages resulting from such change. The method of
incorporation of the valid wage determination, and adjustment
in contract price, where appropriate, should be in
accordance with applicable procurement law.
The contract awarded to petitioner was for the installation of
an irrigation system at Offutt Air Force Base, Nebraska.
Underground water sprinkling systems awarded separately may not
be performed under the general classifications and wage rates
issued in the wage determination made applicable to the project.
The petitioner makes a strong argument that the classification
of lawn sprinkler installer is the paramount craft to perform
the type of work involved in the project and no craft in the
wage determination performs this type of work. The record has
not been developed so that the Board can make an informed
decision regarding this matter.
The Wage and Hour Division should undertake a locality,
factual investigation. The purpose of the survey is to determine
what classifications and wage rates are those applicable to
installation of an irrigation system at Offutt Air Force Base,
Nebraska. [5]
~6
[6] If such a survey establishes that this kind of work has
not normally been considered to be within the classifications
and wage rates issued and made applicable thereto, the Wage and
Hour Division erred.
If the survey discloses that the work in question has been
normally and customarily considered outside of the classifications
and wage rates contained in the wage determination made applicable
to the contract, the Wage and Hour Division's survey should
determine what were the appropriate classifications and wage rates
to which the petitioner should be held in this case.
In view of the above, the case is remanded to the Wage and
Hour Division with the foregoing instructions.
BY ORDER OF THE BOARD
Craig Bulger,
Executive Secretary
Wage Appeals Board [6]