DBA Index -- "H through P" Headings

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 "H" through "P"
Return to full Table of Contents

Hearings De Novo
Heavy Construction
Helpers
Highway Construction
Incidental Construction
Independent Contractors
Interest
Jurisdiction - Administrative Law Judge
Laches
Lack of Final Agency Decision
Letter of Inadvertence
Locally Prevailing Rates
Modification of Wage Determination
oney Damages
Partners - Liability
Prime Contractors Responsible for Violations of Subcontractors
Projects of a Character Similar
Proper Classification of Workers

HEARINGS DE NOVO

Associated Project Builders, Ltd. and E.H. Heating and Cooling Company
WAB 77-9, Oct. 4, 1977

WAB is an appellant agency and does not hear matters de novo except in exceptional circumstances not demonstrated here.

HEAVY CONSTRUCTION

Construction of Waco Metropolitan Area Regional Sewerage System WAB 83-4, April 22, 1983

The determination of the Wage and Hour Division that heavy construction wage rates should apply to the construction of the entire Waco Metropolitan Area Regional Sewerage System Improvement Project with the exception of the administration building alteration, the and the storage building to building construction main building, the shop building which were to be built pursuant rates, is upheld.

The practice set forth in South Cobb Waste Water Treatment Plant , WAB-76-19, which affirmed the practice of issuing both beavy and building wage rate schedules for projects properly characterized an involving more than one category of construction is correct and should be followed by the Wage and Hour Division.

Wagman, Inc.
WAB 8222, July 30, 1982

Where the wage decision in question, which contained a schedule of wage rates for construction over land 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.

Prevailing Wage Rates Applicable to Three Construction Projects of MARTA
WAB 75-5, Aug. 14, 1975

Data from water and sewer treatment plants should be excluded at this time in making the wage determinations for the three subject segments of MARTA. The Board finds sufficient characteristics of the work on these water treatment and sewage disposal plants which distinguish their nature from the nature of the heavy work that goes into the three MARTA segments.

Prevailing Wage Rates applicable to three construction Projects of MARTA
WAB 75-5 (Supplemental decision), Oct. 16, 1975

In determining the prevailing wages for a segment of the MARTA system, ESA should exhaust all wage data in the "heavy" data base before utilizing data from major bridge projects in highway work that was awarded under separate bridge contracts.

Review of Wage Determination Decision 77-VA-770 for Interstate 66 Project, Virginia
WAB 77-33, March 21, 1978

The Assistant Administrator was correct in issuing heavy construction wage rates for certain segments of work in a contract for the construction of Interstate 66. These segments included bridge abutments, footings for aerial structures, reinforced concrete box tunnel, water lines and mains, sanitary sewers, etc., which cannot be characterized an anything other than construction for the sole purposes of the proposed metrorail system.

Rapid rail systems have consistently been classified as heavy construction by this Board. The cost of these structures is $4 million and represents 17.8% of the total project cost, and i. not incidental to the highway construct ion.

Review of Wage Determination Decision 77-VA-242 for Contract Involving Interstate I-66 and Metro
WAB 77-8, June 10, 1977

Only highway wage rates (and no heavy rates) should be issued for the contract calling for the construction of a dual four-lane highway with a median strip that may be used by a ground level METRO rail line, bus lanes or neither, in which case the median will be landscaped. The items being placed in the median which will serve possible METRO use amount to no more than 8.5% of the contract cost and there is no assurance at this time that the median will be used for Metrorail lines.

Wage Rates Applicable to Construction of 69th Street Wastewater Treatment Plant, Houston, TX
WAB 77-29, March 3, 1978

In the construction of the subject wastewater treatment plant, the heavy construction wage schedule should be applied to the filter beds and contact chambers. The changes in the design end construction of the beds and chambers resulting from the addition of a concrete slab and administrative office building on top of the beds and chambers were not substantial enough to change the traditional characterization of the construction of the beds and chambers from heavy to building construction.

The Board's decision in Brown's Mill Road Bus Facilities, WAB Case No. 75-11, does not require it to consider the bids and chambers as incidental to the building. Particularly this is so where there has been a common practice of dividing those plants between building and heavy construction and the structure can be easily divided into its building and heavy construction components.

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

Chattahoochee Waste Water Treatment Plant, Cobb Co., Ga.
WAB 77-3, April 21, 1977

Although heavy construction has traditionally been considered to be construction that was neither building, highway nor residential construction, the practice of issuing a separate schedule of water and sewer line rates where sufficient wage information is available ha. existed since passage of the Federal Water Pollution Control Act Amendments in 1961. Further, the exclusion of water and sewer line wage data from a compilation of wage information from heavy projects is proper provided there is sufficient wage information available to support the separate schedules.

Prevailing Wage Rates Applicable to South Cobb Waste Water Treatment Plant
WAB 76-19, Nov. 19, 1976

Wage-Hour erred in issuing only a building schedule for the water and sewer treatment plant to be constructed in Cobb County, and is directed to modify the wage decision to also include a heavy construction wage schedule. It is Wage-Hour's general practice to issue two schedules for such projects, and there is no factual basis for issuing just the building schedule in this case.

Review of wage decisions applicable to three construction projects of the Metropolitan Atlanta Rapid Transit Authority
WAB 76-7, April 5, 1976

Heavy wage rate schedules Should be issued for the subject contracts involving construction of the Marta Electrified Railroad. Even though come of the present construction interfaces with an interstate highway and there is considerable and varied street work, not one of the three contracts is for highway construction. Similarly, although some work interfaces with future Marts station construction, not one of the instant contracts is for building construction.

Washington National Airport
WAB 76-5, 1976

A heavy wage schedule should be issued for certain rehabilitation work on a runway at National Airport. Although both petitioner and ESA agreed that projects similar to the runway rehabilitation work here involved are highway construction projects, WAB does not so view it. The Board abides by the well-established practice adopted at the beginning of the interstate highway program that in the absence of special circumstances and compelling reasons to do otherwise, non-highway rates will not be used as a base for wage decisions on highway contract. and highway wage rates will not be used as a base for wage decisions on non-highway work.

Wage rates applicable to the construction of Virginia Segment C-7 (Huntington Route) of the Metropolitan Rapid Rail Transit System in Arlington County, Va.
WAB 71-5, Feb. 18, 1972

Wage data from the Mixing Bowl Project, a $52 million highway interchange complex Job, should be utilized in issuing a wage determination for the rapid rail transit system segment to be constructed. The unique nature of the Mixing Bowl project, which is not similar to the usual or even unusually difficult highway project, is of such substantial magnitude and complexity as to be in a class by itself and is considered heavy work.

Wage rates applicable to the construction of Virginia Segment C-7 (Huntington Route) of the Metropolitan Ray System in Arlington County, Virginia
WAB 71-5, Dec. 7, 1971

For the segment C-7 project there is no need for the Administrator to look to the District of Columbia or elsewhere for similar project work and prevailing rates because the Shirley Highway Interchange Complex, commonly known as the mixing bowl. project, can be considered equivalent as a project of a character similar to the C-7 segment. The fact that Segment C-7 is a part of the Metro system affords no valid reason to preclude the Mixing Bowl job and to look to the District in determining the appropriate prevailing rates for C-7.

Determination of the Prevailing wage rates applicable to the construction of a lock and canals on the Tombigbee River
WAB 71-2, July 26, 1971

Highway construction projects are not of a character similar to the proposed project involving the construction of a lock and canal. The prevailing wage rates for a particular project are to be determined on the basis of a comparison of projects, not the work of the crafts.

Determination of Wage rates applicable to tunnel under obile River
WAB 69-4, July 18, 1969

The wage determination schedules applicable to the subject project involving construction of a tunnel under a river including approach ramps, ventilation buildings, and all electrical and mechanical systems for tunnel operation, are as follows. A dredging rate schedule should be added to the wage determination. A highway schedule shall be applied to the two approaches which connect the ends of the tunnel under the river to the related highway project. All project work from portal-to-portal, including all work immediately adjacent to or in the immediate vicinity a, the two portals, and all cofferdam work for the project shall be constructed pursuant to a heavy schedule.

Cherry Hill Construction, Inc.
WAB Case No. 85-27, October 2, 1987

The Board reject. petitioner's contention that it is not the responsibility of subcontractors when submitting their proposals to prime contractors to determine whether the building or heavy schedule contained in the wage determination applies to the project. Bidding contractors must assume this responsibility and the applicable regulations at 29 CFR 1.6(b) and 5.13 provide procedures to follow when a bidding contractor has any doubt with respect to the way in which the Davis-Bacon Act and wage determinations will be applied.

Yuma Desalting Plant
WAB Case No. 84-23, January 23, 1985

The majority of the Board affirms the Wage and Hour practice of issuing both heavy and building wage rate schedules for projects properly characterized as involving construction identified as building construction and as heavy construction. An exception to this rule exists when area practice dictates one single wage schedule prevails on a project as the result of the practices of local contractors performing similar projects in the area. In this matter, the area practice does not support such an exception.

Five pre-engineered metal structure. with reinforced concrete foundations and floor slabs were only housing incidental to the equipment and machinery that wan a part of the treatment process of the desalting plan. This work should be classified as heavy construction.

The construction of the desalting building foundations and superstructures, including interior work, bear the characteristics of a building construction project, and should be characterized as building construction. However, two-thirds of the desalting structure contains equipment devoted to the desalting process, and installation of this equipment should be characterized as heavy construction.

HELPERS

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.

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

The employees hired by petitioner to perform the glazing duties and for which an additional classification and wage rate for glazier's helper was requested were not helpers because they were performing journeyman duties and learning the trade, as stated by petitioner. Helpers do not perform these duties or learn the trade.

Wage Rate for Roofer's Belters, 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.

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 wee consistent with local area practice as established by organized crafts through negotiated agreements.

Petitioner's use of helpers meets the criteria set forth by the Court of Appeals in Building and Construction Trades Dept., AFL-CIO v. Donovan , 712 F.2d 611 (C.A. D.C., 1983). Moreover, the District Court's injunction does not appear to apply to the Department's enforcement policies.

HIGHWAY CONSTRUCTION

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

Wage Rates for Extension of Runway 10-28 NAS, Norfolk Va., and for Taxiway Construction at Hartsfield Atlanta International Airport, Ga.
WAB 77-34 and 77-32, Jan. 27, 1978

The Board does not wish to extend the Washington National Airport decision (WAB 76-5) and directs Wage-Hour to return to the long established practice of considering runway and taxiway construction as projects of a character similar to highway construction.

Review of Wage Determination Decision 77-VA-242 for Contract Involving Interstate I-66 and Metro
WAB 77-8, June 10, 1977

Washington National Airport
WAB 76-5, 1976

A heavy wage schedule should be issued for certain rehabilitation work on a runway at National Airport. Although both petitioner and ESA agreed that projects similar to the runway rehabilitation work here involved are highway construction projects, WAB does not so view it. The Board abides by the well-established practice adopted at the beginning of the interstate highway program that in the absence of special circumstances and compelling reasons to do otherwise, non-highway rates will not be used as a base for wage decisions on highway contracts and highway wage rates will not be used as a base for wage decisions on non-highway work.

Jahncke Service, Inc. and T. L. James & Co., Inc.
WAB 73-10, Jan. 18, 1974

Under a contract to construct 6.6 miles of grading and one bridge, and which contained both highway and dredging rates for crane operators, the crane operator should be paid the dredging rate for the off-shore work and the highway rate for the remainder of the work.

Determination of the prevailing wage rates applicable to the construction of a lock and canals on the Tombigbee River
WAB 71-2, July 26, 1971

Determination of wage rates applicable to tunnel under obile River
WAB 69-4, July 18, 1969

The wage determination schedules applicable to the subject project involving construction of a tunnel under a river including approach ramps, ventilation buildings, and all electrical and mechanical systems for tunnel operation, are as follows. A dredging rate schedule should be added to the wage determination. A highway schedule shall be applied to the two approaches which connect the ends of the tunnel under the river to the related highway project. All project work from portal-to-portal, including all work immediately adjacent to or in the immediate vicinity of the two portals, and all cofferdam work for the project shall be constructed pursuant to a heavy schedule.

Prevailing Wane 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

Building construction rates, rather than highway rates, are applicable to contract calling for site clearance, grading, paving and related work for the Brown's Mill Road Bus Facilities. Under long established Davis-Bacon Act practice, a project cannot be broken down into packages of work. The nature of the Brown's Mill Road Bus Facility and the subject contract must be examined together.

Under Davis-Bacon Act principles, site preparation work in the subject contract is simply not of the nature of a highway project. If this were so, then all such work including the building construction rates when used and paid for all building site preparation work would be included by ESA in the determination of highway wage rates.

INCIDENTAL CONSTRUCTION

Wage Rates Applicable to Construction of East Lake Station Site Improvements and Parking Lots
WAB 78-5, March 23, 1978

The Assistant Administrator correctly ruled that the construction of two parking lots, although performed under separate contracts, was "incidental" to the construction of the MARTA East Lake Station, and that therefore the building wage schedule was applicable to construction of the parking lots as well as the station. The "incidental" rule policy is a long standing Wage-Hour policy that has been reviewed and approved by Congressional Oversight Committee and the Wage Appeals Board, and is not invalid under the Administrative Procedure Act. The Davis-Bacon Act refers to projects of a character similar, not similar work an the basis of determining prevailing wage rates.

Review of Wage Determination Decision 77-VA-770 for Interstate 66 Project
WAB 77-30, March 21, 1978

Rapid rail systems have consistently be classified as heavy construction by this Board. The cost of there structures is $4 million and represents 17.8% of the total project coat, and is not incidental to the highway construction.

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

The principle of issuing different rates for incidental construction is recognized by the Wage and Hour Division in its All Agency Memorandum No. 131, July 14, 1978. When a clearly established practice of paying different wage rates on specific portions of building projects is established, different rates may be paid.

Sparroworld Baptist Corporation
WAB Case No. 86-18, October 31, 1989

The Board adopted the administrative law judge's (ALJ) decision in its entirety. The ALJ concluded that the workers for whom back wages were computed were employees, not independent subcontractors. The contractor had walked out of the ALJ hearing stating he was ill. However, the contractor did not produce a doctor's certificate and the ALJ found his credibility was lacking.

INTEREST

Mast Construction, Inc., Dun-Rite Construction Corporation
WAB Case No. 84-22, March 14, 1986

Wage Appeals Board lacks jurisdiction to award petitioner's claim for interest on moneys withheld and then returned to petitioner. Board acts only as fully and finally as Secretary concerning matter within its jurisdiction.

LACHES

J. Slotnik Company and Vermont Heating & Ventilating Co.
WAB 80-5, March 22, 1983

Even where there has been, as in the instant case, a 4 (four) year delay between the time the violations began and the filing of the Order of Reference, in the absence of a clear showing of sufficient injury or disadvantage to the contractor, invocation of a laches doctrine is inappropriate.

Thomas J. Clements, Inc.
WAB 84-12, January 25, 1985

The Board affirmed the administrative law Judge's conclusion that the doctrine of laches is not applicable.

Camilo A. Padreda General Contractor, Inc.
WAB Case No. 87-1, August 3, 1987

The Board cannot agree that debarment would not be appropriate because of a delay of almost two years between the violations and notification that debarment proceedings were being initiated. This is not unusual in Davis-Bacon cases and in the absence of any disadvantage to the contractor the Board has not accepted this doctrine as appropriate in these cases.

Bright Construction Company
WAB Case No. 85-3, October 1, 1985

Laches may not be invoked against the government when it acts to enforce a public right or protect a public Interest. Contract Work Hours and Safety Standards Act (CWHSSA) is a statute, among other administered by the Wage and Hour Division, designed for the benefit of employees and the public.

Laches requires more than delays it requires a lack of diligence on the part of the Wage and Hour Division Administrative procedures are not known to be expeditious. The Here delay in the final notification of the assessment of liquidated damages Is not evidence of a lack of diligence on the part of the government.

LACK OF FINAL AGENCY DECISION

Wage Surveys for Building and Heavy Construction Projects Brazoria, Texas
WAB 78-27, April 6, 1979

Petitioner's appeal that Wage & Hour's wage surveys will be improper, arbitrary, capricious and in violation of Wage-Hour regulations is premature because the surveys being objected to have yet to be completed. Therefore, there exists no final decision by Wage-Hour which would be reviewable by WAB.

LETTER OF INADVERTENCE

Beacon Place Corporation
WAB Case No. 87-34,39, September 20, 1989

By three separate opinions, the Board overturned the Administrator's ruling which had retroactively applied to the project a higher wage rate for carpenters by means of a letter of inadvertence. The regulations authorize the issuance of letters of inadvertence in situations where wage determinations contained "clerical errors". The purported clerical error involved the failure of Wage Hour to include in the wage determination some descriptive language from a collective bargaining agreement which limited a low residential rate for carpenters to "residences up to and including four-family dwellings". The wage determination simply applied the lower rate to "residential construction". The Board members concluded there was no "clerical error", emphasizing that 18 months had passed before the correction was made, that the correction occurred after contract award and that parties to the contract had relied on the lower rate in the wage determination.

Palmer Gardens Project
WAB Case No. 87-5, October 31, 1989

The Board rescinded the letter of inadvertence previously issued by the Administrator, stating that its decision in the companion case of Beacon Place Corporation, WAB Case No. 87-34, was fully dispositive of the issues.

LOCALLY PREVAILING RATES

Wage rates applicable to the construction of Virginia Segment C-7 (Huntington Route) of the Metropolitan Rapid Rail Transit System in Arlington County, Va.
WAB 71-5, Feb. 18, 1972

Under the normal and traditional application of Davis-Bacon Act principles, if an Arlington baaed contractors' association had negotiated a special heavy construction schedule or project agreement for work similar to Segment C-7 for Arlington County, but such work rates, though negotiated, had not in fact been paid, the Division of Wage Determinations could not successfully sustain the imposition of such negotiated rates and elaborate classifications in the face of payroll evidence that other rates in fact prevailed.

The fact that in one locality building and heavy rates are the same does not justify transporting such a practice to another even proximate locality without factual evidence in the second area to support the use of that practice.

Determination of the Prevailing wage rates applicable to the construction of a lock and canals of the Tombigbee River
WAB 71-2, July 26, 1971

The proposed wage determination for the Gainesville locks and canals in this project does not establish the wage determinations for other segments of the work on the Tennessee Tombigbee Waterway project to be awarded over the next ten years of construction which are not of a similar character or are in a different locality. A wage determination is based on factual inquiry; wage predetermination by wage predetermination, one at a time. Each segment of the overall Waterway project must be resolved on its own considerations in accordance with the practices and rates prevailing in the locality where each such segment is geographically located.

MODIFICATION OF WAGE DETERMINATION

Almeda-Sims Sludge Disposal Plant Project
WAB Case No. 78-13, January 5, 1979

The Department of Labor's action in directing EPA to use the building, rather than the heavy, wage schedule was not a modification of the wage determination subject to the 10-day rule under 29 CFR 1.7(b)(1) and (2), but rather was correction of an error in judgment made by EPA.

Prevailing wane rates applicable to the construction of sewage treatment plants. water facilities. etc. - Gananda Development Corporation
WAB Case Nos. 73-13 and 74-1 (consolidated), May 14, 1974

Regulation 1.7(a) requires that requests for modifications of wage determinations be received and processed before work starts or award made. The wage predetermination schedule must be successfully challenged in a timely fashion or it must be included in the bid and contract documents and must be paid.

Wage Rates for Baker Heights Contract BK-1
WAB Case No. 83-16, July 16, 1984

The Board affirmed the Administrator's ruling that, pursuant to the regulations, a new wage determination published March 11 was applicable to a contract under which bids were opened on March 21. The local contracting agency was not informed of the new rates until June 6 and sought a variation from the Administrator. The Administrator denied the variance request.

The regulation provided that "modifications published in the Federal Register later than 10 days before the opening of bids shall not be effective, except when the Federal agency . . . finds that there is a reasonable time in which to notify bidders of the modification." The Board followed the general rule which provides that when an act is required to be done within a specific number of days "before an event, the computation is made by excluding the day on which the act is done and including the day on which the event is to occur.

Camilo A. Padreda General Contractor, Inc.
WAB Case No. 87-1, August 3, 1987

Partners must be responsible for all the acts of the partnership. Mr. Padreda was more than an inactive partner. took part in everyday operations, and had knowledge of the filet violations. However, there are factors justifying a lesser debarment period. Mr. Padreda and his fellow joint ventures apportioned tasks in connection with management of the project including the responsibility for employment related decisions and recordkeeping. A one-year period of debarment is imposed.

PRIME CONTRACTORS RESPONSIBLE FOR VIOLATION OF SUBCONTRACTORS

Tap Electrical Contracting Inc. & Calcedo Construction Corp. & Expert Electric. Inc.
WAB Case No. 84-1, March 4, 1985

The Board adopts in their entirety the findings and conclusions of law set forth in the administrative law judge's decision dated June 13, 1983. These include the administrative law judge's conclusion of law that under the circumstances where the prime contractors and the subcontractor were aware of the Davis-Bacon and Contract Work Hours and Safety Standard" Act provisions, the prime contractors are not relieved of their obligations under the Act even if they were not fully informed of the violations of the subcontractor until after they occurred. Monies were properly withheld from the prime contractors to satisfy the violations of the subcontractor.

All Phase Electric Company
WAB Case No. 85-18, June 18, 1986

The Board upheld the ruling by the Wage and Hour Division that employees of a subcontractor performing work required by the prime contract subject to the Davis-Bacon provisions are entitled to prevailing wages irrespective of whether prime advised subcontractor of Davis-Bacon applicability, and any claim by subcontractor against prime for damages is not the proper subject of Department of Labor proceeding. The monies were rightfully withheld from the prime contractor to pay the back wages due employees of the subcontractor.

A. D. Roe. Inc., John P. Fox d/b/a Fox Painting and Decorating Company
WAB Case No. 84-11, December 18, 1985

The Board adopted the decision and order of the administrative law judge (ALJ) in its entirety 83-DBA-15 (April 11, 1984). The ALJ held that the prime contractor was contractually obligated for the subcontractor's back wage liabilities, even though the prime was unaware of the willful violations by the subcontractor.

Bright Construction Company, & Trac Excavating Company
WAB Case No. 85-3, October 1, 1985

Contract Work Hours and Safety Standards Act (CWHSSA) provides that government may look to the prime contractor and the violating subcontractor for payment of liquidated damages. In this case, the sanction of withholding can only be applied against the prime contractor.

Northern Colorado Constructors. Ltd.
WAB Case No. 86-31, December 14, 1987

The Board held the prime contractor liable for the full amount of its subcontractor's wage underpayment violations, including back wage amounts in excess of the amount withheld from the prime contractor by the contracting agency. "The Board finds that the Davis-Bacon Act itself creates a contractual obligation on the part of the prime contractor to pay the sums which its subcontractor owes to the subcontractor's employees. The petitioner must look to the subcontractor for its recourse."

PROJECTS OF A CHARACTER SIMILAR

Wage Rates Applicable to Construction of East Lake Station Site Improvements and Parking Lots
WAB 78-5, March 23, 1978

The Assistant Administrator correctly ruled that the construction of two parking lots, although performed under separate contracts, was "incidental" to the construction of the MARTA East Lake Station, and that therefore the building wage schedule was applicable to construction of the parking lots as well as the station. The "incidental" rule policy is a long standing Wage-Hour policy that has been reviewed and approve by Congressional Oversight Committee and the Wage Appeals Board, and is not invalid under the Administrative Procedure Act. The Davis-Bacon Act refers to projects of a character similar, not similar work as the basis of determining prevailing wage rates.

Wage Rates for Biscayne Retirement Home
WAB 83-2, March 16, 1983

A three-story health care center for convalescent purposes consisting of 120 beds, each floor being served by a nurses' station and other medical equipment is not a project of a character similar to the usual low-rise residential apartment or single family home from which the residential wage rate information i. compiled in wage and home surveys. Such a facility is more similar to hotel, motel, clinic, hospital, dormitory, barrack or low rise commercial construction, all of which are included in the general category of building construction and are issued building construction wage rates by the Wage and Hour Division.

Wage Rates for Extension of Runway 10-28 NAS, Norfolk, Va., and for Taxiway Construction at Hartsfield Atlanta International Airport, Ga.
WAB 77-34 and 77-32, Jan. 27, 1978

Review of Davis-Bacon Wage Decisions 77-TX-4190 through 77-TX-4207 and related decisions in Texas
WAB 77-23

When there is no general agreement as to the proper category of construction and when it is important for wage determination purposes to categorize such a project, the Department of Labor may consider wages being paid on projects of a character similar as one indication of the proper category of construction. Wages, however, are only one indication. It is also necessary to look at other characteristics of the project, including the construction techniques, the material and equipment being used on the project, the type of skills called for and other similar factors which would indicate the proper category of construction.

Interstate Project No. I-65-1(85)23, Highway Bridge over obile Bay, Mobile and Baldwin Counties, Ala.
WAB 77-2, Oct. 21, 1977

The heavy wage rates issued for construction of tied arch span of the Mobile Bay Bridge did not reflect wages prevailing for bridge construction in the area. The projects included in the Wage-Hour survey were not projects of a character similar. The Department of Labor cannot disregard wage rate data from very similar bridge projects located in Mobile County Just because contracts for those bridges had been advertised with highway rates by the State Highway Department.

Wage Determination 76-DC-3000 Applicable to FHA Projects 000-44207 LDP/SUR/-2900 Van Ness Street, N.W., Washington, D.C.
WAB 76-11, Jan. 27, 1977

Petitioner's request that the Board recognize high-rise residential construction in the District of Columbia as a separate category for wage determination purposes is denied. The test of whether a project is of a character similar to another project refers to the nature of the project itself in a construction sense, not to whether union or nonunion workers are employed. Since the 1935 amendments to the Davis-Bacon Act, the statutory focus has always been on the character of the project itself rather than on who was employed on the project or how much he or she was being paid. The Board rejects the concept of a so-called "carve-out" theory which would appear to support the idea that one project could be considered dissimilar from another project on some basis other than the nature of the project itself.

Prevailing Wage rates applicable to the construction of Pumping stations and force main, Eslava Creek Project
WAB 73-6, May 22, 1973

The instant project, located in public areas and thoroughfares and connecting with principal public or municipal sewage disposal systems is properly classified as a sewer and water line work project in the Mobile area. There is no basis to conclude that public work in the Mobile locality, should now be deemed to be a project of a character similar to industrial construction or highway construction.

Prevailing Wage rates applicable to the construction of Edgewood Terrace II
WAB 73-2, April 4, 1973

One of the purposes of the definition of projects of a character similar to the contract work. is to prevent the erosion of an individual employee or on a single craft or classification basis of the prevailing wage rates for the project considered as a whole, as compared to other projects in those local situations in which both projects have theretofore been clearly identified as of the same character. It was precisely because of the Destabilizing effect the construction industry experienced in such situations that the concept of projects of a character similar to the contract work. found its way into the statute.

Compliance with the labor standards requirements of the Davis-Bacon and Related Acts, Transom 72 Project, Dulles International Airport, Va.
WAB 72-11, Feb. 28, 1973

The specifications for the structure were for fragile and temporary construction, scheduled to be used for the 10-day period of Transpo 72, with the government having possession for not much more than a month. an examination of the specifications showed that application of the commercial or general building rate. prevailing in Washington, D.C. to the temporary quasi-housing structures here was unwarranted. This project was of a character similar to housing construction and ESA should have adverted to appropriate wage determinations for housing when confronted with the issue of the rates applicable to this project.

Prevailing wave rates applicable to construction of Wisconsin Avenue Nursing Rome, Washington, D.C.
WAB 72-9, Oct. 24, 1972

Petitioner has a two-step burden to justify setting aside the decision of ESA's Wage Determination Branch. The first step is to establish that nursing homes of the type of construction here involved is not a project of character similar to the type of construction in the area which has been constructed under the general building wage rate schedule. The second step is a showing that the appropriate wage rate schedule applicable to nursing homes in the area should then be the wage rates paid a majority of workers on high-rise residential construction or some other type of construction. The Board need not reach the second step because petitioner has not made a sufficient showing on the basis of planning, development, architectural and construction factors that Wage Determination Branch was in error in continuing to classify nursing home construction along with other types of general business construction.

Wage rates applicable to the construction of Virginia Segment C-7 (Huntington Route) of the Metropolitan Rapid Rail Transit System in Arlington County, Va.
WAB 71-5, Feb. 18, 1972

Wage data from the Mixing Bowl project should not be limited to only those employees working on the tunnel portion of that project. Under the Davis-Bacon Act, the test of corresponding classifications of laborer. and mechanics is not a comparison of individual work or tasks, but a comparison of project by projects of a character similar..

Wage rates Applicable to the construction of Virginia Segment C-7 (Huntington Route) of the Metropolitan Rapid Rail Transit System in Arlington County, Virginia
WAB 71-4, Dec. 7, 1971

For the segment C-7 project there Is no need for the Administrator to look to the District of Columbia or elsewhere for similar project work and prevailing rates because the Shirley Highway Interchange Complex, commonly known as the ixing Bowl. project, can be considered equivalent as a project of a character similar to the C-7 segment. The fact that Segment C-7 is a part of the Metro system affords no valid reason to preclude the Mixing Bowl job and to look to the District in determining the appropriate prevailing rates for C-7.

Determination of the Prevailing Wage rates applicable to the construction of a lock and canals on the Tombigbee River
WAB 71-2, July 26, 1971

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

Building Construction rates, rather than highway rates, are applicable to contract calling for site clearance, grading, paving and related work for the Brown's Mill Road Bus Facilities. Under long established Davis-Bacon Act practice, a project cannot be broken down into packages of work. The nature of the Brown's Mill Road Bus Facility and the subject contract must be examined together.

Prevailing Wage Rates Applicable to Three Construction Projects of MARTA
WAB 75-5, Aug. 14, 1975

In determining the prevailing wage rates for these three segments of the MARTA system, ESA properly excluded wage data from water and sewer line projects.

The work subject to each contract, rather than the entire MARTA system, should be compared with similar type projects to determine the appropriate wage rates.

PROPER CLASSIFICATION OF WORKERS

Lee Roy Corley d/b/a Corley Mechanical Contractor
WAB 78-26, April 6, 1979

Wage and Hour presented ample and substantial evidence that the work in question under a contract to replace and modify heating systems is generally performed and considered by the industry to be pipefitter's work, and not laborer's work.

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 teas been satisfactorily established. This area practice governs the rate of pay applicable to petitioner' employees engaged in removal of old roofing on the project in question.

Irby Construction Co.
WAB 78-9, March 16, 1979

The Assistant Administrator correctly ruled that employees engaged in the assembly on the ground of steel structures to carry electrical transmission lines Should be paid the appropriate groundman rate for Line Construction, rather than the laborer's rate. Language of the Davis-Bacon Act requires that the employment practices in the vicinity of the proposed project be considered in determining the appropriate classification to perform the work at issue.

Carabetta Enterprises, Inc.
WAB No. 74-4 & 74-4A, January 30, 1976

HND specialists seeking to achieve construction savings through lower labor costs cannot blithely misclassify established work or determine the assignment or work between crafts in Connecticut. One of the most common methods of evading the application of the Davis-Bacon Act is by misclassification of work. Dressing an old practice in a new fable does not change the application of the Davis-Bacon Act. The administering agency must determine whether a new procedure is in fact a true change in technology justifying new work classifications or whether it is only a misclassification of work in the particular locality.

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 pane's 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.

Sentinel Electric Company
WAB 82-9, April 5, 1984

The Assistant Administrator correctly ruled that electricians, rather than protective signal installer/repairer, is the appropriate classification for the work of installing a low voltage five alarm system in a Veterans Administration Medical Center in Tucson, Pima County, Arizona. The area practice survey reveals that the work of installing low voltage fire alarm systems in this area is performed by electricians being paid the rate contained in the applicable wage determination.

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

Under established principles of Davis-Bacon Act administration, when the wage predetermination schedule contains only one wage rate for the carpenter classification without intermediate rates it is not permissible for contractors who come on the project site, whether organized or unorganized, to divide work customarily considered to be the work of the carpenters' craft into several parts measured according to the contractor by his assessment of the degree of skill of the employee, and to pay for such division of the work at less than the specified rate for the carpenters' craft.

When the Department of Labor determines that the prevailing wage for a particular craft derives from experience under negotiated arrangements, it must make certain that the wage determinations carry along with them, as far as practicable, the classifications of work according to job content upon which the wage rates are based.

The Secretary of Labor is charged with the responsibility of assuring the coordination of the administration of the Davis-Bacon and related Acts and consistency of their enforcement. In the case of a question as to proper classification, an authorized ruling should be requested from the Secretary of Labor. The authority to classify workers lies with the Department of Labor, and not with the contracting agency on the project.

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.

Framlau Corporation
WAB 70-5, April 19, 1971

In determining the rate of pay for workers, the duties actually performed by a worker determines his rate of pay, not the fact that he does not possess the tools of a trade, or a license, or formal training, or is working in a market short of trained skilled mechanics. Moreover, while it is permissible under the contract labor requirements to work an employee in more then one classification. To do so imposes added responsibility on the contractor to make certain that such en employee is properly paid for the various types of work he performed and for those hours he performed that particular job.

Brezina Construction Company
WAB 68-10, Dec. 29, 1969

Absent certain specialty trade situations and specific area practice considerations, the same classification and minimum wage rate therefore must be applied to the performance of identical work by individual laborers or mechanics. In this case "roofers" and "carpenters" were doing the identical work of applying exterior shingles (roofers placing shingles on roof and carpenters on sides) at different rates.

In this case, even if application of roofers' rates was contrary to general industry practices, those rates -had been set down in the wage determinations (albeit erroneously determined to be representative of the locally prevailing rate) and it was too late, once work was completed, to fault contractors for paying those rates, particularly since the Administrator considered the roofer's rate to be applicable to work which is identical to that in issue.

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 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 disputed work. Although lineman claim 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. Re 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.

Tele-Sentry Security Inc.
WAB Case No. 87-43, June 7, 1989

A majority of the Board affirmed the decision of the administrative law judge (ALJ) that the contractor had misclassified and underpaid workers installing a security system and a fire alarm system. The ALJ correctly concluded the workers were properly classified as electricians, whereas the contractor had classified the employees as "electrician, labor" and "laborers." The Board noted that the contractor made no effort to utilize the procedures for adding classifications to a wage determination provided by 29 CFR 5.5(a)(1)(ii)(A), (B), and (C), but proceeded to misclassify employees at its own peril.

The Board majority reaffirmed its position in Homer L. Dunn , WAB Case No. 87-3, that an ALJ's findings concerning witness credibility should not be disturbed unless error is clearly shown.

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.

DBA Index -- "H through P" Headings

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

DAVIS-BACON ACT INDEX

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DIVISION OF FAIR LABOR STANDARDS

FEBRUARY 1990 (revised)

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