United States Department of Labor
Office of Administrative Law Judges Law Library

DAVIS-BACON ACT INDEX

 

Prepared by

 

DIVISION OF FAIR LABOR STANDARDS

 

FEBRUARY 1990 (revised)

This document covers Heading topics beginning with "A"
Return to full Table of Contents

 

Adding Classification to Wage Determination
Adjudication and Ruling Making
Advisory Decisions
All Agency Memoranda
Appeal of Administrative Law Judge's or Administrator's Decision - Timeliness
Apprentices and Trainees
Area Practice
Assignee Liability
Authority to Issue Rulings
Authority of Administrative Law Judges.
ADDING CLASSIFICATION TO WAGE DETERMINATION

 

Rite Landscape Construction Co., Inc.
WAB 83-3, October 18, 1983

   To give any meaning to the words shall be classified or reclassified conformably to the wage determinations in 29 CFR 5.5(a)(1)(ii), the proposed wage rates must bear same reasonable relationship to the wage rates contained in the wage determination. This does not Wean 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. Mere, the rate of $4.50 per hour as requested by petitioner does not meet the criterion of treasonable relationships to the other wage rates contained in the wage determination.

   With respect to the landscape laborer's classification, which petitioner requested be added to the wage determination, the Board is not entirely convinced that a laborer performing landscape work can be fitted into the duties of a building construction laborer, a classification already listed in the wage determination. However, the Board finds it unnecessary to determine whether the Assistant Administrator correctly denied the additional classification. The wage rate for such conformed classification for landscape laborer would not differ from the wage rate for building construction laborer.

 

Prime Roofing, Inc .
WAB 78-20, January 11, 1979

   Wage-Hour correctly denied petitioner's request that an additional classification of roofer's helper be added to the wage determination. The basis for petitioner's request was a negotiated working agreement which contained no limitation on the duties to be performed by helpers where roofers or apprentices are unavailable, and prior to construction of the project neither the contracting officer nor Wage-Hour could be assured that the requested helpers would not install roofing material.

 

Clevenger Roofing and Sheet Metal Co.
WAB 79-14, Aug. 20, 1980

   Even though Petitioner's request for roofer's helper/ trainee classification was preliminarily approved by a representative of the contracting agency, the Corps of Engi- neers, Department of Labor regulations require the contracting agency to report the reclassification to the Secretary of Labor. 29 CFR 5.5(a)ll)(ii). These regulations do not give the contracting agency the authority to approve additional classifications.

 

Holloway Sand & Gravel Trucking, Inc.
WAB 79-13, Jan. 16, 1980

   There is no basis for issuing conformable rates pursuant to 29 CFR 5.5(a)(ii) for truck drivers when that classification is already contained in the applicable wage determination. Conformance by its own terms only applies to the work being performed.

 

Wage rates for Roofer's Belters, DeNarde Construction
WAB 78-3, May 14, 1979

   It would be improper to approve the additional classification of helper when the negotiated agreement which provided for the employment of helpers failed to provide safeguards that would prevent helpers from performing roofer's duties.

 

Wage Rate for Roofer's Helpers, FT. Richardson, Alaska
WAB 78-2, Sept. 18, 1978

   There did not exist a sufficient distinction between the work performed by roofer's helpers and journeymen roofers to justify the issuance of a separate classification for a roofer's helper, particularly where the job description provided by the petitioner indicated that a roofer's helper performs the same duties as a journeyman roofer with the exception of not being able to work at the kettle, and this prohibition was to last only three months as evidenced by the collective bargaining agreement.

 

Review of Wage rates applicable for power equipment operators, Hardaway Construction Co.
WAB 70-4, Feb. 29, 1972

   The Department of Labor occasioned this enforcement problem by failing to include power equipment operators in its wage determination, and EDD, as well as the local housing authority, failed to follow the classification and reclassification procedures of the regulations and contract provisions. It is incumbent on the Administrator, acting under both his wage predetermination ant enforcement responsibilities, to make some showing that the petitioner in fact was not paying the prevailing rates for operators in Taylor County at the time this contract was awarded. If unable to do so, the matter is to be disposed of by the Administrator taking a non-enforcement position in this case in accordance with procedures long recognized in cases of this type where the evidence of record is insufficient to support a finding of contract labor standards irregularities.

 

Determination of wage rates applicable to the dredging subcontract for Interstate Highway Project I-95-1(14)(84)
WAB 69-3, June 20, 1969

   A determination of conformable wage rates should relate back to the time of the making of the contract.

 

Elmer Davis
WAB 80-8, May 4, 1984

   The Assistant Administrator did not err in approving the addition of an electrician's classification and wage rate to the predetermined wage schedule, even though the wage determination contained a classification and wage rate for lineman. With the exception of lineman and groundman classifications, every other classification on the wage determination reflected open sloop, non-negotiated wage rates as prevailing. Wage and Hour conducted an area practice survey of both negotiated and non-negotiated practice in the area and found that it was local area practice for electricians to perform the same duties, Wage and Hour was unable to locate any similar construction in the area that utilized lineman or was performed by contractors signatory to the applicable collective bargaining agreement. A laborer or mechanic under the Davis-Bacon Act is entitled to be paid the prevailing rate for the work performed according to the local area practice. Be is not entitled to be paid at a higher rate than that prevailing because, by reason of "inadvertence," the true wage rate was omitted from the wage schedule when, as is the case here, appropriate steps were duly taken to correct the inadvertence. It is further clear that the Assistant Administrator meticulously applied the basic Fry Brothers , WAB 76-6, principle.

 

Hawk View Apartments
WAB Case No. 85-20, April 24, 1986

   Petitioner was not penalized for using certain classifications (plumber's helper, irrigation plumber's helper, and utility worker) that were not listed on the federal wage determination, but were listed on the Nevada State wage determination which also applied to the project. The Assistant Administrator had denied petitioner's conformance request to add these classifications to the federal wage determination. The Board ruled use of these requested classifications did not violate the basic principles of the Davis-Bacon Act and was consistent with local area practice as established by organized crafts through negotiated agreements.

 

Evergreen Construction, Inc.
WAB Case No. 86-4, July 21, 1986

   The only method by which a contracting agency or Wage Hour can provide additional classifications which have not been listed in the applicable wage determination are set forth in the regulations at 29 CFR 5.5(a)(l)(ii)(A). The requested wage rate of $4 per hour for the classification of lawn sprinkler installer, which was substantially lower than the unskilled laborer's rate on the wage determination did not meet the treasonable relationship. test required by the regulations.

 

TRL Systems
WAB Case No. 86-8, August 7, 1986

   After contract award, and when the factual situation does not come within the relief provided under 29 CFR 1.6(f), the only method to provide additional classifications not listed on the wage determination in that set forth in 29 CFR 5.5(a)(1)(ii)(A). There is ample evidence in the record that the work to be performed by the requested classification of protective signal installer is performed by the electrician's classification already contained in the wage determination. The Board had previously held in Warren Oliver Company , WAB Case 84-8, that it is not necessary that the classification in the wage determination be the prevailing one, but only that work in the area be performed by that classification of work.

 

Layne-Northern Company
WAB Case No. 85-15, December 19, 1985

   Once a contract has been awarded, the only method for adding classifications is that provided in 29 CFR 5.5(a)(1)(ii). In this case, the record shows that work can be and is performed by classifications contained in the wage determination. It is not necessary that the classifications in the wage determination be the prevailing ones, but only that the work in question be performed by classifications contained in the wage determinations. Therefore the requested additional classifications are denied.

 

Sealtite Corporation
WAB Case No. 87-6, October 4, 1988

   In affirming the administrative law judge's finding that the contractor was subject to Davis-Bacon debarment, the Board cited record evidence of the prevailing wage and overtime violations, the misclassification of employees and the untimely submission of certified payrolls. The only classification utilized by the contractor was one not listed on the wage determination, and the contractor did not seek to add that classification through the Department's conformance procedures. The contractor instead paid employees at rates well below those contained in the applicable wage determination.

 

M.A. Mortenson Company
WAB Case No. 87-50, February 17, 1989

   The Administrator's decision denying additional classifications of cleanup workers was affirmed by the Board. Petitioners failed to meet any of the criteria required by 29 CFR 5.5(a)(1) (ii)(A) in order to obtain approval of new classifications. Although a new collective bargaining agreement authorized the additional classifications and lower rates subsequent to the start of construction, it was area practice when the wage determination was issued, and the contract bid and awarded, for the classification of unskilled laborers contained on the wage determination to perform the disputed cleanup work. Furthermore, the proposed wage rates, which ranged from 1/3 to 3/5 of the wage determination rate for unskilled laborers, did not bear a reasonable relationship to those in the wage determination. Approval of use of the requested additional classifications would give Petitioner a post-facto advantage over all others who bid this job, and would be neither just nor in the public interest.

 

 

ADJUDICATION AND RULE MAKING

 

Arbor Hill Rehabilitation Project
WAB Case No. 87-4, November 3, 1987

   The administrative process in this matter is not rule-making subject to the notice and comment provisions of the Administrative Procedure Act (APA). Under the APA definitional scheme, the Secretary of Labor's administrative procedures for resolving disputes concerning application and interpretation of the labor standards provisions of the Davis-Bacon and related acts is "adjudication" rather than "rule making" and the Administrator's decision in this case is an corders, not a "rule".

 

 

ADVISORY DECISIONS

 

Prevailing Wage Rate Applicable to the Hartsfield Airport, Atlanta, Ga.
WAB Case No. 77-4, February 25, 1977

   The 10-day rule did not apply to Situation where Wage-Hour advised the City of Atlanta of the correct wage rates for the project within 10 days of bid opening because the Davis-Bacon and related Acts had not attached to this project since the City had not as yet requested federal funds. Therefore, Wage-Hour's telegram advising the City of the modified rates were merely advisory.

 

McGee Creek Project
WAB Case Nos. 81-11 & 82-1, December 24, 1982

   The Board does not intend to adopt the procedure of the earlier Board in raising a decision that is merely advisory. The petitions for review are dismissed in that the appeal was not heard before bid opening and contract award.

 

Renovation of Family Housing Units Eielson Air Force Base, Alaska WAB Case No. 86-20, November 26, 1986

   The Board does not issue advisory decisions as to specific projects. This matter is distinguishable from Muskogee Shopping Mall , WAB Case No. 85-26 (January 21, 1986) where the Board considered it imperative to resolve the dispute because of the large number of projects.

 

 

ALL AGENCY EMORANDA

 

Almeda-Sims Sludge Disposal Plant Project
WAB 78-13, January 5, 1979

   The Board does not agree that the guidelines contained in AAM #130, and as explained in AAM #131, constitute a binding rule that requires publication in accordance with the APA. At most, they are guidance to the agencies as to the manner in which agencies should proceed in using wage determinations. The Board, therefore, sees no basis for instructing the Wage-Hour Division to withdraw AAM #130 and AAM #131.

 

 

APPEAL OF ADMINISTRATIVE LAW JUDGE'S OR ADMINISTRATOR'S DECISION - TIMELINESS

 

Jos. J. Brunetti Construction Co. & Dorson Electric & Supply. Co. Inc.
WAB Case No. 80-9, November 18, 1982

   The filing of a Notice of Intent to Appeal is sufficient to satisfy the Regulation's requirement that an appeal be filed within 20 days or the ALJ decision becomes final.

 

Peerless Products, Inc.
WAB Case No. 80-4, November 18, 1982

   The Solicitor's Notice of Intent to Appeal and Request for Extension of Time was filed 5 days after the administrative law judge's decision became final under 29 CFR 5.11(b). The Chief Administrative Law Judge exceeded his authority with respect to Section 5.11(b) when he granted the extension of time. The regulations do not give him the discretion to modify Section 5.11(b). Only in special circumstances and for good cause may a party be relieved from the obligation to file an appeal within 20 days from the final decision by an administrative law Judge. The majority's decision has the effect of denying justice to the very people who are the intended beneficiaries of the Davis-Bacon Act.

 

Irvinbilt Company
WAB Case No. 88-22, September 8, 1989

   The Board denied petitioner's untimely request for an extension of time, thereby affirming the finality of the Administrator's ruling. The Board noted that the history of the case showed an unusual number of filing extensions by petitioner. The Order further noted that there was no dispute concerning the amount of back wage liability, and that the Administrator had properly advised petitioner that claims among the developer, prime contractor and subcontractor as to who should bear ultimate responsibility for these violations was not an appropriate subject for DOL proceedings.

 

Electrical Improvements, Fort Wadsworth; Tap Electrical Contracting Service Inc.
WAB Case No. 87-28, July 22, 1987

   The Board denied a motion for an extension of time in which to appeal from a ruling of the Administrator. The ruling notified the contractor it had 30 days to appeal the ruling in accordance with 29 CFR 5.11. Since the ruling was not appealed within the allotted time, it became final in accordance with the cited regulations.

 

 

APPRENTICES AND TRAINEES

 

Soule Glass and Glazing Co.
WAB 78-18, February 8, 1979

   Duly registered apprentices or trainees are the only employees covered by the labor standards provisions of the Davis-Bacon and related Acts and regulations applicable thereto who may be paid lest than the predetermined wage rate for the work they perform.

 

Jos. J. Brunetti Construction Co. & Dorson Electric & Supply Co., Inc.
WAB Case No. 80-9, November 18, 1982

   Where the contractor did not have an approved apprenticeship or training program registered with either the Bureau of Apprenticeship and Training or a recognized state apprenticeship agency, and there was no trainee or helper classification on the applicable wage schedule, the employees must be paid the applicable Journeyman rate for electrician.

 

Clevenger Roofing and Sheet Metal Co.
WAB 79-14, Aug. 20, 1983

   Department of Labor regulations relating to employment of apprentices and trainees, 29 CFR SS5.2(c) and 5.5(a)(4), are clear that these categories of workers may be employed only under specific limited conditions. These regulations state that apprentices and/or trainees may be utilized at less than the predetermined rate for the work actually performed only if they are individually registered in an apprenticeship council or the Bureau of Apprenticeship and Training, etc.

 

Johnson Electric Co.
WAB 80-3, April 11, 1983

   For Davis-Bacon purposes, the required wage rate for apprentices is the appropriate percentage of the Journeyman wage rate which is listed on the prevailing wage determination, and not a percentage of some other journeyman's rate set by various apprenticeship committees.

   Apprentices are due the full amount of fringe benefits listed on the wage determination, and not just a percentage of such fringe benefits.

 

Tollefson Plumbing and Heating
WAB 78-17, Sept. 24, 1979

   Employment of apprentices at less than the predetermined rate is permissible only when they are individually registered in a bona fide apprenticeship program approved by DOL or with a State Apprenticeship agency recognized by Bureau of Apprenticeship and Training. Petitioner's submission of work permit cards (Licenses) issued by S.D. State Plumbing Board, even though originally approved by HUD, do not constitute registrations in a bona fide apprentice program as required by the Department of Labor regulations for prevailing wage purposes.

   The responsibility for having a bona fide apprenticeship program and registering employees belongs to the petitioner and not to the contracting agency.

 

CRC Development Corporation and Don Harris Plumbing Co., Fla.
WAB 77-1, 77-13, Oct. 31, 1977

   While Department of Labor Regulation 5.5(a)(4)(i) is not clear as it could be, this provision has been in effect since the 1950's and has been-interpreted consistently by the Department to mean that the allowable ratio of apprentices to journeymen had to be maintained on each construction project subject to Davis-Bacon. It was never intended that on a project subject to the Davis-8acon Act, a contractor would be able to utilize all his apprentices, thereby displacing journeymen entitled to work on the job. This would defeat the purpose of the statutes enacted to protect the interests of laborers and mechanics employed on government financed or assisted projects.

   Regulation 5.5(a)(4)(i) is clear that excess apprentices who are performing the work of the craft and using the tools of the trade are entitled to the journeyman's wage rate.

 

Palmer and Sicard, Inc., Brunswick, Maine
WAB 77-12, Dec. 14, 1977

   Although petitioner's apprenticeship program for plumbers, which allows the employment of one apprentice for each five journeymen, has elements of training in steamfitting and welding, he may not employ one apprentice in each category

 

(plumbing, steamfitting, and welding) for which he is employing one to five journeymen on the project. The apprentices will only become journeymen plumbers after completing their training, not journeymen steamfitters or welders.

 

Repp & Mundt, Inc. & Goedde Plumbing & Heating Co., Inc.
WAB 80-11, Jan. 17, 1984

   Although it was occasionally the practice in the vicinity of this project for Contractors and the union to disregard the ratio of apprentices to Journeymen established in the collective bargaining agreement, the contractor on this Davis-Bacon project must comply with the ratios specified by the apprenticeship plan approved by the Bureau of Apprenticeship and Training (BAT) in accordance with 29 CFR 5.5(a)(4)(i). The regulation was not drafted to permit business agents to determine when the ratios of apprentices to journeymen could be waived on an ad hoc basis without BAT approval.

   The Board does not see how the Davis-Bacon Act and its implementing regulations issued to accommodate apprenticeship training programs can be administered at the enforcement stage unless all bidders at the time of the submission of bids can expect that the applicable contract provisions and regulation. which require BAT approved apprentices to journeymen ratios will be applied as written. It seems to the Board that the cost estimators for the sponsoring agency making the award could only determine whether a job should be awarded by taking into account costs based upon adherence to apprentice-journeyman ratios per approved BAT programs in the locality. When the successful bidder does not comply with there ratios on a Davis-Bacon Act job, it would appear that the award has been secured on either a misrepresentation or a misunderstanding that the work would be performed in accordance with the approved BAT apprentices to journeymen ratios. Any such misunderstanding must be construed against the successful bidder in the absence of clear and convincing justification.

 

Tap Electrical Contracting Inc. & Calcedo Construction Corp. & Expert Electric Inc.
WAB 84-1, March 4 1985

   The fact that employees listed as trainees were not individually registered in a program as required by 29 CFR 5.5(a)(4)(ii) mandates that these workers were entitled to the journeyman's pay.

 

Bronx Park I. Bronx Park II. Etc.. Spartan Mechanical Corp. Atlantis Heating Corp.
WAB Case No. 80-6, April 16, 1984

   Other than the apprentice rate, there is no provision for payment of a wage rate other than the journeyman'. rate in the Davis-Bacon Act and related acts. The responsibility for having a bona fide apprenticeship program and for the registration of eligible employees in such a program is the contractor's and not the contracting agency's.

   Although criminal acts were allegedly visited upon the projects involved, these acts cannot be used as an excuse to contravene the employers' obligations to conform to the labor standards provisions and to observe the employers' obligations to his employees as required by the regulations. It cannot be shown that the alleged criminal acts perpetrated on the petitioners prevented them from establishing the apprenticeship and training programs and validly registering their employees therein.

 

Miree Construction Corp.
WAB Case No. 87-13, February 17, 1989

   A majority of the Board affirmed the Administrator's rulings (1) that only the actual costs necessary to provide apprenticeship training for apprentices registered in the ABC Apprenticeship Plan and employed by the contractor are creditable towards Davis-Bacon prevailing wage obligations, (2) that payments to "the apprenticeship plan for workers in one craft may not be used to offset Davis-Bacon obligations to workers employed by the con- tractor in other crafts, and (3) that Davis-Bacon credit is allowed at an "effective annual rate of contribution," which is computed by dividing the total annual contribution made for each class of workers for which apprentices were being trained by the total number of hours worked in the year by journeymen and apprentices in that same classification on both government and non-government work.

Colonial Realty. Inc.
WAB Case No. 87-37, February 22, 1989

   In a case in which it was undisputed that a contractor exceeded the apprentice/journeyman ratio provided by the plan in which he was enrolled, a majority of the Board, while recognizing that the general rule provided otherwise, remanded the case to the Administrator for a determination of whether it was local area practice to ignore the apprentice/journeyman ratio requirements contained in approved apprenticeship programs. If such was the case, the majority stated that Area practice has been superimposed on contractual language and the Administrator should take a no enforcement position under singular facts of this case.

   The majority further stated it viewed the Case as one involving special features at the enforcement stage and it should not be viewed as an abandonment of the general rule.

 

Colonial Realty. Inc.
Supplemental Decision on Request for Reconsideration
WAB Case No. 87-37, September 20, 1989

   A majority of the Board denied the Administrator's motion for reconsideration, but modified its earlier decision to eliminate the remand to conduct a local survey. By Separate opinions, the members constituting the majority emphasized that the petitioner was bound by a negotiated agreement, that it had requested journeyman from the local union but was repeatedly sent apprentices, and that petitioner had not attempted to avoid its Davis-Bacon obligations by utilizing apprentices instead of journeymen in order to reduce its labor costs. They concluded the Board had the authority to grant relief to the petitioner in this case.

 

J.W. Bateson Co.
WAB Case No. 87-38, December 5, 1989

   A majority of the Board held that trainees in a training program approved by the Veterans Administration under the Emergency Veterans Job Training Act of 1984 (EVJTA) were not due Davis-Bacon wages. The majority concluded the EVJTA program was excluded from Davis-Bacon coverage by section 4 of the Davis-Bacon Act (40 U.S.C. 276a-3) which provides "This Act shall not be construed to supersede or impair any authority granted by Federal law to provide for the establishment of specific wage rates.. The administrative law Judge's (AM) conclusion was affirmed but the entire Board rejected the ALJ's determination that the EVJTA was part of the Job Training Partnership Act.

 

 

AREA PRACTICE

 

Prevailing Wage Rates Applicable to the Construction of Lower Potomac Pollution Control Plant
WAB 77-20, Sept. 30, 1977

   The Assistant Administrator correctly issued both building and heavy wage rates to apply to construction of the subject water and sewer treatment plant even though a recent survey in the area demonstrated that only a single set of wage rates had been paid on such plants. When it is clear from the nature of the project itself in a construction sense that it is to be categorized as either building, heavy, or highway, it is not necessary to resort to area practice to determine the appropriate categorizations of the project. However, wage rate information from the survey may be used to establish prevailing building or heavy wage schedules to be used in the county.

 

Edwin Vinecki d/b/a Alpine Roofing Co.
WAB 78-22, February 23, 1979

   In light of the information received by the Board, the conclusion drawn is that an area practice of employing roofers to remove old roofing when new roofing is being installed has been satisfactorily established. This area practice governs the rate of pay applicable to petitioner's employees engaged in removal of old roofing on the project in question.

 

Wage Rate for Rebar, Greggo & Ferraro
WAB 82-6, May 11, 1983

   The tying of reinforcing iron bars (rebar) on a railroad bridge was correctly classified as the work of ironworkers. There must be valid substantial evidence and not inconsistent, unclear and contradictory information to overturn the initial finding of area practice by the Wage and Hour Division that ironworkers perform rebar work on project similar to the subject project.

   The longstanding principles of Davis-Bacon and related Acts administration establish the necessity to determine prevailing area practice with respect to which classification of employees performs a particular type of work in order to determine the applicable prevailing rate required to be paid.

 

Wagman, Inc.
WAB 82-2, July 30, 1982

   Where the wage decision in question, which contained a schedule of wage rates for construction over Lana and a separate schedule for construction over water, reflected negotiated "heavy" construction wage rates, then only "heavy" construction projects (and not "highway" projects) should be looked at in determining whether employees who apply a protective epoxy coating to bridge parapet walls and dividers were correctly classified as painters by the Wage and Hour Division.

 

Review of Davis-Bacon Wage Decision 77-TX-4174 through 4189 and related decisions in Texas
WAB 77-19, Dec. 30, 1977

   The Assistant Administrator incorrectly omitted wage rates for paving and Utilities incidental to General Building Construction. from a series of wage determinations for building construction recently issued in Texas. The record indicates that in Texas one set of rates prevail for building construction and a different set of rates prevail for the incidental paving and utilities related thereto. This case is distinguishable from the decision in Lower Potomac Pollution Control Plant , WAB 77-20, in which the project consisted of both heavy and building construction, and the incidental work does not become heavy-highway because lower rates are -paid on it.

 

Carabetta Enterprises Inc.
WAB 74-4, Jan. 28, 1975

   What the prevailing practice is when a project subject to the Davis-Bacon Act is bid cannot be determined by what employees did after construction begun. Otherwise, local area practice for any bid job that dominates all the rest becomes nothing more than what the contractor and the administering agency says it is.

 

Carabetta Enterprises Inc.
WAB 74-4 and 74-4A, Jan. 30, 1976.

   The petitioner, as the moving party, has an initial burden of supporting its contention with factual data that prior to the advertising for bids there was a practice, or at least a discernible pattern, that work of the type in question was accepted in the community as different from the traditional practice among the crafts, and that the work in question was not done by Ironworkers. The petitioner here produced nothing factual to overcome a presumption of administrative competence and expertise.

   Wage-Hour correctly determined that the work of erecting precast concrete panels was properly classified as ironworkers' and not carpenters' work. In determining which classification of worker performs certain work, the local practice must be based on experience in the industry prior to the issuance of the wage determination in dispute, the pivotal point in time being when the job goes out for bids with the appropriate wage rates (and work classifications) in the bid documents.

 

Prevailing wage rates applicable to the construction of the HUD Intermediate Care Facility
WAB 74-2, July 12, 1974

   Where the Department of Labor has for some time recognized two categories of building wage rate determinations for the Louisville area, Jefferson County, Kentucky -- a general building (commercial) wage rate schedule and a residential wage rate schedule, and the petitioner alleges that 90% of all nursing homes and intermediate health care facilities in Kentucky were built under the residential wage scale schedule, ESA is directed to conduct a survey to determine whether the building and construction industry in Jefferson County has accepted the exclusion from the general building category of projects of a character similar to the proposed contract work.

 

Prevailing wage rates applicable to the construction of Abbott House (Cedar Lane Apartments), and similar construction projects
WAB 72-5, July 2d, 1972

   Wage predeterminations oust be predicated upon careful scrutiny of the facts and circumstances in each case and on a locality-by-locality basin. The Mattapony rule, namely, that high-rise residential construction calls for the application of the commercial or general building construction scale of wages and that garden-type or walk-up multi-family residential construction calls for lower wage rates, exonerated the current area practice followed by the construction industry In that area at that time. It did not establish a principle to be applied throughout the country. No doubt, in many instances involving high-rise residential construction, the Division will find commercial rates prevailing and applic- able. She factual situation in this ease appears otherwise, and would seem to fall within the Board's recognition as expressed in the Mattapony and Stevenson cases that a petitioner could establish as area practice that high-rise residential construction is in feet constructed by laborers and mechanics employed at wage rates lower than the recognized commercial wage Peale.

 

Elmer Davis
WAB 80-8, May 4, 1984

   The Assistant Administrator did not err in approving the addition of an electrician's classification and wage rate to the predetermined wage schedule, even though the wage determination contained a classification and wage rate for lineman. With the exception of lineman and groundman classifications, every other classification on the wage determination reflected open shop, non-negotiated wage rates s prevailing. Wage and Hour Conducted an area practice survey of both negotiated and non-negotiated practice in the area and found that it was local area practice for electricians to perform the same duties, Wage and Hour was unable to locate any similar construction in the area that utilized lineman or was performed by Contractors signatory to the applicable collective bargaining agreement. A laborer or mechanic under the Davis-Bacon Act is entitled to be paid the prevailing rate for the work performed according to the local area practice. Be is not entitled to be paid at a higher rate than that prevailing because, by reason of "inadvertence" the true wage rate was omitted from the wage schedule when, as is the case here, appropriate steps were duly taken to Correct the inadvertence. It is further clear that the Assistant Administrator meticulously applied the basic Fry Brothers , WAB 76-6, principle.

 

Hawk View Apartments
WAB Case No. 85-20, April 24, 1986

   Petitioner was not penalized for using certain classifications (plumber's helper, irrigation plumber's helper, and utility worker) that were not listed on the federal wage determination, but were listed on the Nevada State wage determination which also applied to the project. The Assistant Administrator had denied petitioner's conformance request to add these classifications to the federal wage determination. The Board ruled use of these requested classifications did not violate the basic principles of the Davis-Bacon Act and was consistent with local area practice as established by organized crafts through negotiated agreements.

 

Phoenix Storm Drain Tunnels
WAB Case No. 87-40, February 22, 1989

   A majority of the Board affirmed the ruling of the Administrator that laborers, and not ironworkers, was the appropriate classification of worker to perform placement of reinforcing steel during construction of storm drain tunnels in Arizona. In so doing, the Board found no fault with Wage Hour's decision to limit its area practice survey to a 10-year period.

 

 

ASSIGNEE - LIABILITY

 

16 Units Low Income Apartment Building, Murphysboro. Illinois
WAB Case No. 87-42, July 7, 1989

   The Board ruled that the Administrator had not exceeded her authority in assessing back wage liability against a bank which was an assignee to a developer/construction contractor which had committed Davis-Bacon violations. When the initial developer/ construction contractor defaulted and turned everything over to the bank, the bank acknowledged that it assumed all benefits and all liabilities.

 

 

AUTHORITY TO ISSUE RULINGS

 

Prevailing Wage Rates Applicable to MARTA Contract GN-01, Site Clearance, Grading, Paving and Related Work for the Brown's Mill Road Bus Facilities
WAB 75-11, April 19, 1976

   The decisions of the Secretary of Labor under Reorganization Plan 14 are preeminent within the federal administration, end in the Board's view are not subject to further judicial review.

 

Metropolitan Rehabilitation Corp.
WAB 78-25, Aug. 2, 1979

   Petitioner's reliance on contracting officer's advice regarding the appropriateness of wage rate does not relieve petitioner of responsibility to pay the correct wage rates to employees for two reasons: (1) the contracting officer's advice is not binding on the Department of Labor and does not estop DOL from requiring the payment of proper wages. Reorg. Plan No. 14 gives DOL final authority in this regard, (2) the estoppel argument would not be binding n the laborers and mechanics themselves so as to cut off any individual rights they may havee under the Davis-Bacon Act to receive the proper wage rate.

 

Tollefson Plumbing and Heating
WAB 78-17, Sept. 24, 1979

   The Department of labor is not estopped from requiring payment of plumber's rates because HUD misled the contractor and delayed in advising the contractor that its apprentices were not being properly paid. Advice by a contracting agency is not binding on the Department of Labor as DOL has the final authority in this regard under the statutes sad Reorganization Plan No. 14 of 1950.

 

Fry Brothers Corporation
WAB 76-6, June 14, 1977

   Under the Portal-to-Portal Act (29 USC 259) only a written ruling of the Secretary of Labor can be relied upon as a defense against liability for wages which must be paid under the Davis-Bacon Act. "Reliance" on an oral Statement by a local official of the contracting agency cannot be a basis for finding that the contractor has complied with the labor standards requirements of the National Housing Act, which does not provide any "good faith" exception.

 

United Construction Company, Inc.
WAB 82-10, January 14, 1983

   It is not the Comptroller General but the Secretary of Labor, pursuant to the Davis-Bacon Act and Reorganization Plan No. 14 of 1950, who has the sole authority to determine wage rates, to coordinate labor standards among the contracting agencies, and to provide for uniform enforcement of the Davis-Bacon and related Acts.

 

Applicability of the Davis-Bacon Act to Certain site warehouse employees of equipment dealers under Cores of Engineers contract Dworshak Dam
WAB 72-4 June 1, 1973

   A finding and award by the Arbitrator that the work done by employees in question was not the work of warehousemen and was not covered by the collective bargaining agreement was not a sufficient legal or f actual basis on which the Board could render a decision. An arbitration award, whether adverse or favorable to an employee, is not conclusive of a determination of wage rates under the Davis-Bacon Act by this Board.

 

Builders, Contractors and Employees Retirement Trust and Pension Plan
WAB Case No. 85-6, December 17, 1986

   The issue of whether the plan violated the Davis-Bacon Act is not properly before this Board because the Administrator's ruling did not address this issue. The Board lacks jurisdiction to review the determination of the Office of Pension and Welfare Benefit Programs that the Builders pension plan was not in violation of ERISA.

 

Arbor Hill Rehabilitation Project
WAB Case No. 87-4, November 3, 1987

   Pursuant to Reorganization Plan No. 14 of 1950, the Secretary of Labor or his designee (the Wage Appeals Board) has jurisdiction and final authority on coverage issues arising under the Davis-Bacon provisions of the Housing and Community Development Act of 1974.

 

Quincy Housing Authority
WAB Case No. 87-32, February 17, 1989

   The Housing Authority did not have priority over the Department of Labor to funds withheld at the Department's request for back wages due employees who worked on the project. The Housing Authority was contractually obligated to withhold funds for unpaid wages in accordance with the Department's regulations promulgated pursuant to Reorganization Plan No. 14 of 1950. The Housing Authority's claim to a set-off for damages resulting from the contractor's abandonment of the contract accrued later than the Department's claim for the workers.

   Although this ruling is inconsistent with a prior ruling of the Comptroller General, it more adequately effectuates the purpose of the Davis-Bacon and Related Acts. In addition, the Comptroller General has no authority in Davis-Bacon Related Act matters.

 

 

AUTHORITY OF ADMINISTRATIVE LAW JUDGES

 

William Fence Co., Inc.
WAB Case No. 87-23, August 17, 1987

   Davis-Bacon debarment order of administrative law judge (ALJ) was vacated by the Board, because the Order of Reference only authorized the ALJ to decide the issue of wage underpayments, not debarment.

 

E.B. Fitzpatrick. Jr.. Construction Corp.
WAB Case No. 87-17, July 9, 1987

   The authority for an administrative law judge (ALJ) to hold a hearing for enforcement proceedings under Davis-Bacon and related acts is contained in the regulations at 29 CFR 6.30. The record reveals that the document which authorized the ALJ to hold the hearing only authorized the ALJ to decide the issue of whether the employees were underpaid. Thus the ALJs order to debar the petitioner was beyond his authority and is vacated.

 

Northwest Foam Systems, Inc.
WAB Case No. 88-15, February 17, 1989

   The Order of an Administrative Law Judge (ALJ) debarring a contractor was contrary to the intent of a consent agreement of the parties and exceeded the authority of the ALJ.