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 "R" through "W"
Return to full Table of Contents

 

Recordkeeping
Regulations - Interpretation
Rehabilitation
Remand
Residential Construction
Retroactive Application of Davis-Bacon Provisions Settlement Agreements
Single Employer
Statute of Limitations
Suspension of Davis-Bacon Act
Timeliness - Challenges to Wage Determinations
Variances
Wage Surveys - Geographical Scope of Survey
Wage Surveys - Inclusion of Federal Projects
Wage Surveys - In General
Wages and Wage Rates - In General
Water and Sewer Lines
Water and Sewage Treatment Plants
Withholding
Withholding - Priority
Witness Credibility

 

RECORDKEEPING

 

Woodside Village
WAB 75-13, June 25, 1976

   It is the duty of the employer to maintain the necessary records. It is not sufficient for a contractor to simply contend that Department of Labor's backwage computations are wrong. Petitioners at the very least have a correlative responsibility to explain what it believes to be the right computation.

 

Structural Services
WAB 82-13, June 22, 1983

   Contractors and subcontractors who undertake contracts covered by the Davis-Bacon and related acts have an obligation to keep accurate records of wages, overtime and fringe benefits. Failure to keep such records is done at their peril. Without proper payroll records, Wage & Hour compliance officers are compelled to invoke the criteria set forth in Anderson v. Mt. Clemens Pottery Co. , 328 U.S. 680 (1964) which requires the employer to produce evidence of the precise amount of work performed or evidence to rebut the reasonableness of the inferred extent of violations, otherwise employees may be awarded back wages even though the result may only be approximate.

 

Glenn Electric Co., Inc.
WAB Case 79-21, March 22, 1983

   When a contractor fails to keep accurate payroll records and time cards as required by the contract provisions, then it cannot rely on its inaccurate recordkeeping to dispute the Government's method of reconstructing records for purposes of investigation.

 

 

REGULATIONS - INTERPRETATION

 

Jordan and Nobles Construction Co. & W. R. Pierce & Associates
WAB Case No. 81-18, August 19, 1983

   The Board Concludes that the Administrative Law Judge did not read 29 CFR 1.3 correctly when he held that the wage determination was void and unenforceable because the Department of Labor had not considered or consulted all the sources of wage rate information listed in 1.3 and had only relied on wage rate information from collective bargaining agreements applicable to El Paso. Section 1.3(b) was never intended to either require or circumscribe any or all of the factors which the Administrator is to take into account in establishing a true and accurate prevailing minimum wage. But if there had not been such voluntary submission by interested parties, it does not necessarily follow that the Administrator has not followed 11.3 or that he had used an improper methodology in reaching the prevailing wage predetermination.

 

Granite Builders, Inc.
WAB Case No. 85-22, January 27, 1986

   Petitioner's challenge to the wage determination is untimely. The City loaned Urban Development Action Grant (UDAG) funds to the owners of the Granite Building to carry out renovation of the building. The loan agreement required compliance with the Davis-Bacon provisions but did not include a wage determination. Petitioner began construction without giving notice to the City and before it received the applicable wage determination from the City. It appears to the Board that the only reason an appropriate wage determination was not given to the petitioner (construction manager) or the owners was due to their reluctance or negligence in obtaining the labor standards required by the loan agreement. This is not the type of ease for which 29 CFR 1.6(f) was promulgated. This regulation authorizes the issuance of a wage determination after the beginning of construction if the agency has failed to incorporate a wage determination in a contract required to contain Davis-Bacon prevailing wage rates.

 

General Wage Determinations Nos. ID 85-5013 & ID 86-4, State of Idaho
WAB Case No. 86-2, February 4, 1987

   Where data within a given county is insufficient, DOL may give consideration to surveying surrounding counties and to group such counties into economically homogeneous area for wage determination purposes. This is proper under 29 CFR 1.7(b). Secretary is granted wide range of discretion in determining appropriate area for making wage determinations, but Secretary cannot ignore regulations, i.e. , 29 CFR 1.3(d). Section 1.3(d) and 1.7(b) must be read in conjunction. The Wage and Hour Division cannot disregard federal project wage data where private sector data in a given county is insufficient and thereby choose wage data for surrounding counties in determining wage rates for that county.

 

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.

 

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.

 

 

REHABILITATION

No casenotes

 

 

REMAND

 

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

   The mere existence of alleged factual disputes does not require the Board to remand this matter for an evidentiary hearing. The factual issues raised by petitioners are not "material", and therefor remand to the Administrator is unnecessary.

 

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

   This matter was remanded to Wage-Hour for a local survey as the record was not sufficiently developed for the Board to make an informed decision on whether other craft in the wage determination perform installation of an irrigation system in the area. If the survey establishes that this kind of work is normally and customarily considered outside of the classifications and wage rates contained in the wage determination made applicable to the contract, then Wage-Hour should consider the appropriate classifications and wage rates to which Petitioner should be held in accordance with 29 CFR 1.6(f).

 

 

RESIDENTIAL CONSTRUCTION

 

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 mingle family hone from which the residential wage rate information is 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.

 

Largo Landing Fellowship House
WAB 82-24, March 11, 1983

   Building construction wage rates, and not residential rates, were Correctly applied to Construction of the subject project, a six-story, 106 unit apartment building with elevator, to be used for training the elderly and handicapped.

 

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 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 Edgewood Terrace II
WAB 73-2, April 4, 1973

   Petitioners request that only wage data on high-use residential projects, rather than building construction projects in general, be considered in determining the prevailing wage rates for the subject high-use residential project is denied. The planning, architectural factors, construction and development characteristics of high-use residential construction place it in the same category as other highuse building construction in the District of Columbia. The question is whether the industry itself has, in recognition of a local situation, carved such projects out of the general building schedule for wage rate purposes.

 

Compliance with the labor standards requirements of the Davis-Bacon and Related Acts, Transpo 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 rates 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.

 

St. Francis Hospital
WAB Case No. 85-11, January 30, 1986

   The ruling of the Assistant Administrator of the Wage and Hour Division that renovation of a former hospital built on sloping grounds into a 161 unit apartment project is subject to residential, rather than building, construction rates is affirmed. Wage Hour's criteria contained in its Manual of Operations provides guidelines an to whether a structure is considered to be four stories or lens. These guidelines must be followed in the absence of a showing that they are arbitrary and capricious or that the area practice in to the contrary.

 

 

RETROACTIVE APPLICATION OF DAVIS-BACON PROVISIONS

 

Granite Builders, Inc.
WAB Case No. 85-22, January 27, 1986

   Petitioner's challenge to the wage determination is untimely. The City loaned Urban Development Action Grant (UDAG) funds to the owners of the Granite Building to carry out renovation of the building. The loan agreement required compliance with the Davis-Bacon provisions but did not include a wage determination. Petitioner began construction without giving notice to the City and before it received the applicable wage determination from the City. It appears to the Board that the only reason an appropriate wage determination was not given to the petitioner (construction manager) or the owners was due to their reluctance or negligence in obtaining the labor standards required by the loan agreement. This is not the type of case for which 29 CFR 1.6(f) was promulgated. This regulation authorizes the issuance of a wage determination after the beginning of construction if the agency has failed to incorporate a wage determination in a contract required to contain Davis-Bacon prevailing wage rater.

 

Applicability of Davis-Bacon Act to Lease of space for Outpatient Clinic, Crown Point, Indiana
WAB Case No. 86-33, June 26, 1987

   The Administrator properly directed that the contract be amended to retroactively incorporate the Davis-Bacon requirements pursuant to the authority granted by 29 CFR 1.6(f). This issue was dealt with in Muskogee Shopping all , WAB No. 85-26, where the Board indicated that where the contracting agency concluded that the contract was not covered and awarded the contract without Davis-Bacon provision. was the type of case which prompted the Department to promulgate 29 CFR 1.6(f).

 

Muskogee Shopping Mall
WAB Case No. 85-26, January 21, 1986

   The Board upheld the opinion of the Deputy Administrator, Wage and Hour Division, that the Davis-Bacon provisions of section 110 of the Rousing and Community Development Act of 1974 were applicable to the construction of the Muskogee Shopping Mall, but that the Department would not require the inclusion of the Davis-Bacon requirements in the developer's construction contracts for the mall. The City and developer entered into an agreement for construction of the mall without inclusion of the Davis-Bacon requirements on the advice of BUD. Negotiations were concluded prior to the effective date of section 1.6(f) of the regulations 29 CFR 1.6(f)), which permits retroactive application of a wage determination.

 

 

SETTLEMENT AGREEMENTS

 

Ms. Barbara Bass in connection with the case of S & G. Construction Company
WAB Case No. 77-26, March 20, 1978

   The Board declines to accept the petition of an employee challenging a settlement agreement entered into between the Government and the contractor which resulted in the employee receiving fewer wages than had been computed due her. It is not the function of the Board as defined by the Secretary's Order to oversee the legal process resulting in the compromise of claims. In a hearing before the administrative law judge, the Department of Labor represents all of the employees affected by labor standards violations and notice to each of these employees is not required by the Regulations.

 

Thomas J. Clements. Inc.
WAB Case No. 84-12, January 25, 1985

   The Board affirmed the administrative law Judge's finding that the contractor's partial payment of the assessed back wages was not a compromise or settlement.

 

Abernathy and Wood
WAB Case No. 87-41, January 9, 1990

   The Board reversed the decision of the Administrator, and in so doing agreed with the Department of Housing and Urban Development that liquidated damages assessed against the prime contractor for a subcontractor's violations should be waived. The Board concluded it was reasonable for the prime contractor to have believed it had settled all claims with its agreement to pay the subcontractor's violations.

 

 

SINGLE EMPLOYER

 

Midway Excavators, Inc. and King Town Transportation. Inc.
WAB 81-17, Dec. 13, 1983

   The facts clearly indicate that the two firms are closely interlocked in their day to day operations with officers and employees acting on behalf and working for each firm interchangeably, and the Board reaches the conclusion that the two firms functioned as a single employer for the same reasons as enunciated in Operating Engineers v. NLRB , 518 F.2d 1040, aff'd 425 U.S. 800, and Sakrete of N. California v. NLRB , 332 F.2d 902, cert. den. 379 U.S. 961.

 

 

STATUTE OF LIMITATIONS

 

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

   The statute of limitations provisions of the Portal-to-Portal Act do not apply to Department of Labor Davis-Bacon administrative proceedings.

 

Glenn Electric Co., Inc.
WAB Case 79-21, March 22, 1983

   The statute of limitations provisions of the Portal-to-Portal Act do not apply to Department of Labor Davis-- Bacon administrative proceedings.

 

Sainer Constructor. Inc. and Doyle Electric Co.
WAB Case No. 85-13, October 15, 1985

   The decision of the administrative law judge (ALJ) that the statute of limitations in the Portal-to-Portal Act, 29 U.S.C. 255, is not applicable to the administrative processes in this matter arising under the Davis-Bacon Act la upheld.

 

Martell Construction Co.. Inc.
WAB Case No. 86-26, July 10, 1987

   Portal-to Portal Act statute of limitations does not apply to administrative hearings before an administrative law Judge and the Wage Appeal. Board. This ruling applies to Davis-Bacon Act cases as well as the related acts which are not Mentioned in the Portal-to-Portal Act.

 

J & L Janitorial Services. Inc.
WAB Case No. 85-8, November 6, 1985

   Administrative proceedings before an administrative law judge (ALJ) or Wage Appeals Board (WAB) are not barred by the statute of limitations in the Portal-to-Portal Act, 29 U.S.C. 255. (See decision for case cites.) This ruling applies to Davis-Bacon Act cases as well as the related acts which are not mentioned in the Portal-to-Portal Act. Unexcelled Chemical Corporation v. United States , 345 U.S. 59 (1953); Glenn Electric Company. Inc. v. Donovan , 755 F.2d 1028 (3rd Cir. 1985).

 

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

   The Board held that the Portal-to-Portal Act does not apply to Davis-Bacon Related Act administrative proceedings.

 

Progressive Design & Build Inc.
WAB Case No. 87-31, February 21, 1990

   The Board reaffirmed that the statute of limitations of the Portal-to-Portal act does not apply to Davis-Bacon administrative proceedings.

 

 

SUSPENSION OF DAVIS-BACON ACT

 

Woodside Village
WAB 75-13, June 25, 1976

   Although petitioner amended its proposal during the period when the Davis-Bacon Act was suspended, the Act had been reinstated when the contract was entered into and this contract was subject to the Davis-Bacon requirements.

 

 

TIMELINESS - CHALLENGES TO WAGE DETERMINATIONS

 

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

   Petitioner's contention that the wage rates for the job classifications of landscape laborers and lawn sprinkler installers, two classifications not listed in the original wage determination, should be $4.50 per hour is actually a challenge to the wage rate determination itself. This challenge occur red after contract award and is untimely. The time to have come to the contracting agency and/or the Wage and Hour Division to show that the classifications and wage rates furnished for this project (landscaping only) was prior to bid opening and contract award.

 

Jordan and Nobles Construction Co. & W.R. Pierce & Associates
WAB 81-18, August 19, 1983

   Challenges to wage determinations must be made prior to contract award in order to ensure that no contractor gains an unfair bidding advantage and to prevent disruption of the contracting process. WAB has consistently held that the only time the accuracy of a Davis-Bacon wage determination can be challenged is prior to award of contract.

 

McGee Creek Project
WAB 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. She petitions for review are dismissed in that the appeal was not heard before bid opening and contract award.

 

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

   Where petitioner did not raise a question concerning the correctness of the wage rate for truck drivers contained in the wage determination until after contract award and the start of construction. petitioner's challenge was untimely.

 

Wage rates for floor and ceiling tile installers' Ft. cClelland, Alabama
WAB 79-8, July 8, 1980

   The petition for review of the wage determination for soft floor layers and ceiling tile installer was submitted after contract award and was not timely. A challenge to a wage determination is timely only if made prior to contract award. See WAB 64-1; 73-13/64-1; and 79-13.

 

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

   Although the Department of Labor notified EPA prior to bid opening that it was using the wrong wage schedule and there was sufficient time before the contract award to resolve the problem, the Board will not direct that the wage rates be changed since the construction contract was awarded some time ago.

 

Wage Rates for Residential Construction, Southeastern Capital Corp.
WAB 78-12, Jan. 16, 1979

   Where petitioner was notified of the applicable wage determination and the modification to plumber's wage rate prior to start of construction and failed to question same, he cannot, 10 months after construction began, claim that the determination was erroneously made.

 

Great Lakes Construction Corp.
WAB 78-8, Jan. 16, 1980

   Petitioner's challenge is untimely. WAB has held in a line of cases that challenges to wage rates must be made before the awarding of contract and before commencement of construction, or prior to initial endorsement of the mortgage for contracts entered into pursuant to National Housing Act.

 

Kathy Court
WAB 77-16, Jan. 11, 1979

   The Board has consistently ruled that once construction of a project has started, the contractor can no longer appeal the wage rates contained in the applicable wage determination. Although petitioner claims it never was made aware of Wage Decision No.73-CA-13 until the closing, there is evidence in the record that the petitioner was on notice, or should have been on notice by the exercise of diligence, of the existence of a new wage determination.

 

Installation of Conveyor System Naval Supply Center
WAB 78-24, April 6, 1979

   The Board cannot, once the contract has been awarded and work completed, issue a ruling with reference to this contract which would affect the wage requirements of the contract. The Contracting Officer acted in good faith and in accordance with the Department of Defense Acquisition Regulations in determining that the installation of the system was incidental to the supply contract and therefore did not require Davis-Bacon coverage.

 

Espana Gardens

WAS 76-15, May 4, 1977

   The Board recognizes that the authority delegated to the Assistant Administrator to grant hearings pursuant to section 5.11(b) is discretionary. An aggrieved party does not have a right to such a hearing. There was no indication in the record that the Assistant Administrator's actions in denying the hearing were either arbitrary or capricious. The criteria contained in the regulations that the dispute must concern payment of prevailing wage rates or proper classifications which involves significant sums of money, large groups of employees, or novel or unusual circumstances, have not been met. The only practical beneficial effect that a section 5.11(b) hearing could now provide to the petitioner would be to challenge the wage rate for carpenters after the project has been built. This is not a proper function of a section 5.11(b) hearing nor is it allowed under the regulations. Petitioner had ample opportunity to question the wage schedule before he chose to proceed with construction.

 

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

   There was no error in the wage determinations issued for these three projects reflecting the wages paid under negotiated arrangements in the organized sector of the con- struction industry in the Albuquerque locality. When an interested person in the construction industry desires to challenge a practice of the Labor Department without a wage data survey, it is necessary that the attack come before the Labor Department decision becomes the basis upon which bids are taken. St should not be raised at the enforcement stage.

 

Wage determination for Contract to Relocate Illinois Central Gulf Railroad, Tennessee-Tombigbee Waterway
WAB 76-2, May 4, 1976

   It in clear from its rules that the Board will not request contracting agencies to defer bid opening because a petitioner believes that a wage predetermination issued by the Department of Labor is in error. For, if this were to be permitted, an agency, whether it be before this Board or a court, would assume a very heavy responsibility for delaying construction programs over matters which have been exclusively restricted to the administrative process and to the United States Department of Labor. The ramifications of and the damages ensuing from delaying bid openings are not easily measured.

 

Prevailing wage rates applicable to the construction of sewage treatment plants, water facilities. etc. - Gananda Development Corporation
WAB 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 determinations issued in 1970 for eight housing construction projects
WAB 73-3, April 30, 1973

   Petitioners claim after completion of the project that the wage rates in the applicable wage schedule were lower than those actually prevailing is untimely. While ESA may make corrections to a wage determination involving clerical errors pursuant to 29 CFR 1.7(c), such is not petitioner's contention in this case.

 

Wage rates applicable to carpenters. Broken Bow, Custer County, Nebraska
WAB 73-11, Feb. 20, 1974

   Petitioner's challenge of the hourly rate for carpenters established by ESA as excessive was not timely because the federally assisted contract was awarded and construction begun prior to submission of the petition for review.

 

Prevailing Wage rates applicable to the construction of Abbott House (Cedar Lane Apartments), and similar construction projects
WAB 72-5, July 24, 1972

   As a general rule, once a contract has been awarded or, as in the instant housing case, once construction has begun, the Board will not review the Wage Determination applicable to that job. Here, however, the Board is not merely reviewing the wage decision for Abbott House, but more particularly involved are the similar high-rise projects proposed for construction in Columbia, Maryland, and the propriety of the continued use by the Administrator of certain principles extracted from the Board's Mattanony Towers decision (WAB-64-2) of June 29, 1965, and the related Stevenson Apartments decision (WAB-70-7) of January 14, 1971.

 

Appeal of Brock Brothers Construction Co. for review of wage determination applicable to a contractor for the construction of water facilities and appurtenances
WAB 70-3, April 30, 1971

   The Davis-Bacon prevailing wage provisions applicable to this project, as predetermined and incorporated in the contract, contained two rates for laborers -- a building contraction rate and a highway construction rate. Petitioners claim that a lower rate schedule for laborer. under a water and sewer schedule should apply was denied because evidence was submitted to establish that the schedules of wage classifications and rates issued for the project were not those prevailing in the area for the types of work covered by the contract, and (2) after the contract is awarded and the work completed, no relief can be afforded the contractor.

 

Granite Builders, Inc.
WAB Case No. 85-22, January 27, 1986

   Petitioner's challenge to the wage determination is untimely. The City loaned Urban Development Action Grant (DRAG) funds to the owners of the Granite Building to carry out renovation of the building. The loan agreement required compliance with the Devis-Bacon provisions but did not include a wage determination. Petitioner began construction without giving notice to the City and before It received the applicable wage determination from the City. It appears to the Board that the only reason an appropriate wage determination was not given to the petitioner (construction manager) or the owners was due to their reluctance or negligence in obtaining the labor standards required by the loan agreement.

 

Green Island Associates
WAB Case No. 86-21, August 7, 1987

   The case is remanded to the Administrator to determine If negotiations between the City and the developer were concluded prior to the effective date of 29 CER 1.6(9). If the answer is yes, then the Wage and Hour Division has no authority to issue a wage determination. The cane 18 also remanded to determine if petitioners had knowledge that the Davis-Bacon provisions applied to this project prior to the conclusion of negotiations and the start of construction. This is important in view of the Board's decision in Granite Builders, Inc. , WAB No. 85-22.

 

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

   A challenge to the classifications and wage rates in a wage determination must be made prior to bid opening and contract award.

 

Kapetan Inc.
WAB Case No. 87-33, September 2, 1988

   The Board affirmed the Administrator's ruling that petitioner's challenge of the correctness of the electricians' wage rate on the wage determination was untimely. Pursuant to the Department's regulations and prior Wage Appeals Board decisions, requests to change wage rates in wage determinations oust be made prior to contract award or the start of construction where there is no contract award. The Board has adhered to this policy to ensure that competing contractors know in advance of bidding what rates must be paid so they may bid on an equal basis.

 

 

VARIANCES

 

Johnson Electric, Inc.
WAB Case No. 85-21, May 16, 1986

   The term "prior to the beginning of construction" in the National Housing Act, 12 U.S.C. 1715c, refers to the starting of the first construction on the project whether by the prime or a subcontractor and not by each individual contractor. Construction started on the project on April 24, 1984 and the electrical contractor received the subcontract on June 22, after a collective bargaining agreement's lower rate became effective. The Board denied a variance to the subcontractor in view of the above facts and the fact that the National Housing Act contains no variance provision.

 

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

   The Housing Authority's request for waiver under 29 CFR 5.14 is also denied. The assertions of the contractor's surety that it will complete performance of the contract if it receives the balance of the contract funds, that the Housing Authority fears that the surety will undertake litigation against it if it doesn't pay the withheld funds to the surety, and that the workers had a right to seek payment under a payment bond, do not justify granting a variance. The remedy of withholding is not dependent upon whether the contractor is bonded or whether the workers' failed to timely seek recovery under the payment bond. In addition, the surety's claim is without merit for it has an obligation to either complete the contract or permit the Housing Authority to complete the work and reimburse the Authority for any costs above the original contract price.

 

 

WAGE SURVEYS - GEOGRAPHICAL SCOPE OF SURVEY

 

Wage Determination 75-VA-176, Potomac Waste Water Treatment Plant, Prince William County, Va.
WAB 76-10, Oct. 5, 1979

   By using the language "immediate locality" in the Federal Water Pollution Control Act, Congress did not intend that the geographic scope of the wage survey was to be different than that provided by the Davis-Bacon Act. The best unit of measure in conducting wage surveys is the county. However, if there is insufficient wage data in the county, and it is necessary to traverse county lines, all projects of a similar nature in the adjacent counties must be considered, not just enough to obtain a sufficient sampling.

 

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

   In the Davis-Bacon Act, a "locality" is referred to as a poitical subdivision--not a statistical area used for other data gathering purposes. There is no contention in the record that there is any practice on the part of the local construction industry to negotiate or otherwise fix or adjust wage boundaries on the basis of a standard statistical area. This may or may not be the case. We are of the opinion that ESA should revert in this instance to its customary practice of making its determinations on a county by county basin.

 

Washington National Airport
WAB 76-5, 1976

   The civil subdivision for wage decision purposes for work performed on Federal property like National Airport is the civil division with which the Federal property is contiguously and geographically associated.

 

Prevailing Wage rates applicable to the construction of ountain Park Dam
WAB 73-4 and 73-5, May 16, 1973

   Where there was a dam 75 miles away and one county removed from the subject dam project, there was no need to consider wage data from three other dams located at least 200 miles from the subject project.

   The Davis-Bacon wage predetermination standards are by statute oriented to geographic localities. No contention. is made that the four dams used in the wage survey are in the same labor market area or that recruitment of workers for ountain Park Dam will be required from geographic area that are more than 200 miles away and even in another state. It is not appropriate to include these three other dams within the wage orbit used for predetermination of rates for Mountain Park Dam.

 

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

   Although the language of the Washington etropolitan Transit Authority Compact uses the phrase "in the locality," as opposed to the language of the Davis-Bacon Act, referring to the "city, town, village or other civil subdivision of the state in which the work is to be performed, "locality" and "area" simply represent interchangeable descriptions of the city, town, etc.," standard of the Davis-Bacon Act, designating a limited geographical area based on political subdivision boundaries. Therefore, there could be more than one "locality" within the geographical jurisdiction of Metro rapid rail system, and within the meaning of the term "locality" as used in the statutes relating to the Metro construction. The appropriate "locality" in this case is thus Arlington County, and not the entire Washington metropolitan area.

 

Green Island Associates

NAB Case No. 86-21, August 7, 1987

   To use a smaller area than the county as a source of wage data for making a wage determination, it must be shown by substantial project data that it in inappropriate to apply the county data to the area within the county in question. The information submitted by petitioner is not sufficient in scope to deviate from the normal geographic unit of consideration, i.e. , the entire county in the use of wage data for making a wage determination.

 

General Wage Determination Nos. ID 85-5013 & ID 86-4, State of Idaho
WAB Case No. 86-2, February 4, 1987

   When data within a given county is insufficient, DOL may give consideration to surveying surrounding counties and to group ouch counties into economically homogeneous area for wage determination purposes. This is proper under 29 CFR 1.7(b). Secretary is granted wide range of discretion in determining appropriate area for making wage determinations, but Secretary cannot ignore regulations, i.e. , 29 CFR 1.3(d). Sections 1.3(d) and 1.7(d) must be read in conjunction. The Wage and Hour Division cannot disregard federal project wage data where private sector data in a given county is insufficient and thereby choose wage data from surrounding counties in determining wage rates for that county.

 

 

WAGE SURVEYS - INCLUSION OF FEDERAL PROJECTS

 

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

   When applying the Davis-Bacon Act, there is no distinction made between the wage data from Federal and non-Federal construction.

 

General Wage Determination Nos. ID 85-5013 & ID 86-4, State of Idaho
WAB Case No. 86-22, February 4, 1987

   Case is remanded to Wage and Hour Division to issue separate prevailing wage determinations applicable to building construction in two counties based on wage data from all similar construction, both private and federally assisted in those counties. The Wage and Hour Division is granted a wide range of discretion in determining appropriate area for making wage determinations. However, in the first instance all wage data should be collected on private and public construction projects. It is not until after compiling wage rate data that it can be determined whether to exclude Federal and Federally assisted projects subject to Davis-Bacon prevailing wage requirements.

 

 

WAGE SURVEYS - IN GENERAL

 

Wage Rates for Construction of Strategic Petroleum Reserve Projects at Bryan Mound, Brazoria Co., Tx.
WAB 78-11, May 22, 1978

   Where Wage-Hour conducted its surveys in Brazori. County in its usual and long established manner, the surveys carry a presumption of correctness. Petitioner's submission of mislabeled and misleading information was not sufficient to put Wage-Hour on notice that the surveys may be inaccurate. A patty questioning the accuracy of the surveys must do more than make mere allegations. They must show data to show specifically where the surveys are in error or identify procedures used which were in error.

 

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

   The Board does not agree that certain project should be excluded from future wage surveys. The Board has resisted taking a position, as recently as the Mobile Bay Bridge , WAB 77-2, that wage data from a validly awarded project should not be utilized in subsequent wage surveys due to alleged deficiencies in the wage rates determined for the project.

 

Prevailing Wages for Rail Construction in Phase IV of the Very Large Array Program, National Radio Astronomy Observatory, Socorro
WAB 72-18, Jan. 9, 1978

   In issuing a wage determination for rail construction associated with Construction of a radio telescope, Wage-Hour improperly declined to use wage data from an earlier phase of the project. The basis for this action by Wage-Hour was their conclusion that the wrong wage schedule bad been applied to the earlier phase of the project.

 

Interstate Project No. I-65-1(85123, 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.

   When the Department of Labor gives contracting agencies the right to obtain the required wage determinations from the Federal Register and to exercise their judgment as to the appropriate schedule for a particular project, DOL should give due weight to that agency's decision.

 

Modification to Wage Decision applicable to St. Mary's Hospital
WAB 75-4, July 11, 1975

   In a locality where there have been gross fluctuations in construction wage rates, the failure of USA to take into account a wage submission at the time it increased wage rates was an unfortunate but inadvertent error. The Department of Labor is ordered to conduct a new survey to establish the proper electricians' current wage rate.

 

Prevailing Wage Rates Applicable to the Glen Hazel Heights Housing Project
WAB 73-8 & 9, Nov.12, 1973

   The criteria, manner and means used by ESA to arrive at a wage predetermination, including only using projects completed no more than three months prior to the survey, was in conformity with DOL regulations.

 

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

   When a petitioner seeks to overturn a long-established industry practice going back further than any time period possibly relevant to the inquiry, it will be necessary for the supporting data to be based upon full and adequate research encompassing a frame of reference broad enough to be pertinent to the whole inquiry. The accuracy and relevance of wage data Collected, and therefore its objectivity and worth, depends not only upon the precision with which the data is collected, but the planning and programming of the surveys in terms of its purposes and the fullest explanation of questionable matters. Without such full research the surveys become worthless.

 

South Side Water Treatment Plant, Dallas, TX, 7S-TX-122
WAB No. 75-7, June 27, 1975

   In conducting a survey to determine the prevailing rate for electricians in the area, a foreman working as a journeyman electrician should be considered as being paid the negotiated journeyman rate and the foreman wage differential should be disregarded.

 

Prevailing Wage rates applicable to the construction of ontrose House, Montgomery County, Md.
WAB No. 75-10, Nov. 11, 1975

   There is insufficient wage data for the Board to determine whether the Commercial rates or a lower schedule of residential rates are prevailing for high-rise residential construction in the County, and therefore the ease is remanded to Wage Hour for the purpose of making a more adequate, comprehensive, and reliable survey.

 

General Wage Determinations Nos. ID 85-5013 & ID 86-4, State of Idaho
WAB Case No. 86-22, February 4, 1987

   Wage and Hour started wage surveys in December, 1982, which surveys were on-going until March 1, 1985. Surveys were revised and reevaluated up until the time of the issuance of the wage determinations. This procedure is reasonable.

 

 

WAGES AND WAGE RATES - IN GENERAL

 

Wage determinations issued in 1970 for eight housing construction projects currently completed
WAB 73-3, April 30, 1973

   Wage determinations issued under the Davis-Bacon Act and included in a Contract are the minimum rates which may be paid employees performing on the Contract. The determi- nations do not constitute a guarantee that workers may be available for employment at the rates indicated, nor do the requirements of the Davis-Bacon Act constitute a bar to the payment of wages and fringe benefits in excess of those set forth in the wage determinations.

 

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

   The Board does not grant "equitable" relief from increasing construction costs. There are other forums for such relief. The purpose of the Wage Appeals Board is to see that the Davis-Bacon and related acts and regulations are administered fairly for all persons. Considering the remedial nature of the Act, the Board takes a strict Constructionist and traditional view of the Act and seeks fairness of administration. But, "equitable" relief from the provisions of the statute because of inflationary cost. is not within its purview.

 

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

   This matter was remanded to Wage-Hour for a local survey as the record was not sufficiently developed for the Board to make an informed decision on whether other craft in the wage determination perform installation of an irrigation system in the area. If the survey establishes that this kind of work in normally and customarily considered outside of the classifications and wage rates contained in the wage determination made applicable to the contract, then Wage-Hour should consider the appropriate classifications and wage rates to which Petitioner should be held in accordance with 29 CFR 1.6(f).

 

 

WATER AND SEWER LINES

 

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 teas 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 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 Three Construction Projects of MARTA
WAB No. 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.

 

 

WATER AND SEWAGE TREATMENT PLANTS

 

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 main building, the shop building and the storage building which were to be built pursuant to building construction rates, is upheld.

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

 

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 and 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 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 elements 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.

 

Review of Davis-Bacon Wage Decisions 77-TX-4190 through 77-TX-4207 and related decisions in Texas
WAB 77-23, Dec. 30,1977

   The new definition of "building" construction published by Wage-Hour in its wage determinations and which included sheltered enclosures used to house machinery and equipment cannot be applied to the construction of the subject water and sewer treatment plant. In the present case there is a legitimate dispute as to the category of construction into which the contract work properly falls. This definition is in the nature of a rule and if a definition is deemed desirable, it should be adopted in accordance with rulemaking procedures. Use of this definiton is to be discontinued until it can be properly adopted.

 

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

   The Assistant Administrator correctly issued both building and heavy usage 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 has 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.

 

 

WITHHOLDING

 

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.

 

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

   Monies were rightfully withheld from the prime contractor to satisfy back wages due employees of the petitioner subcontractor, which alleges it we. not advised in a timely manner by either the contracting agency or the prime contractor that it was required to pay building, rather than heavy construction, wage rates.

   The Board reaffirms its holding in All Phase Electric Company , WAB Case No. 85-18, that the question of whether monies due the underpaid employees should be paid by the prime contractor dire and not from funds retained from the subcontractor was not a proper subject for the Board to decide.

 

Colby Cooperative Starch Company
WAB Case No. 84-21, June 3, 1985

   Under the Public Works and Economic Development Act of 1965, the Department of Labor regulations and the grant agreement, labor standards violations render the grantee liable for underpayment to employees. The sanction of withholding can only be applied against the grantee and such action is proper under the Act and regulations promulgated by the Department of Labor.

   The Department has the authority to regiment Economic Development Administration (EDA) to transfer the withheld grant funds to the Department for disbursement to the employees. The matter of disbursement is strictly between the Department and the federal agencies and so long as the disbursement is carried out in a proper manner there can be no basis in law to challenge such disbursement.

 

 

WITHHOLDING - PRIORITY

 

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.

   The Housing Authority's request for waiver under 29 CFR 5.14 is also denied. The assertions of the contractor's surety that it will complete performance of the contract if it receives the balance of the contract funds, that the Housing Authority fears that the surety will undertake litigation against it if it doesn't pay the withheld funds to the surety, and that the workers had a right to seek payment under a payment bond, do not justify granting a variance. The remedy of withholding is not dependent upon whether the contractor is bonded or whether the workers' failed to timely seek recovery under the payment bond. In addition, the surety's claim is without merit for it has an obligation to either complete the contract or permit the Housing Authority to complete the work and reimburse the Authority for any costs above the original contract price.

 

 

WITNESS CREDIBILITY

 

Abcon Sales Corp.
WAB Case No. 87-44, October 26, 1988

   The Board affirmed the administrative law judge's (ALJ) decision that the contractor, its president and vice-president committed aggravated or willful violations of Davis-Bacon Related Acts and should be subject to a three-year period of debarment. Concerning the conflicting testimony of witnesses, the Board found no compelling reason to reverse the ALJ's findings. Once the Wage and Hour Division presented testimony tending to establish that petitioners committed willful and aggravated violations, it was then incumbent upon Petitioners to provide convincing testimony to refute the government's position. Petitioners failed to accomplish this before the ALJ.

 

Homer L. Dunn Decorating,. Inc.
WAB Case No. 87-3, March 10, 1989

   The Board affirmed the decision of the administrative law judge (ALJ) debarring the contractor and its president and owner for willful and aggravated violations of the Copeland Anti-Kickback Act and for disregarding their obligations to employees under the Davis-Bacon Act.

   The Board upheld the ALJ's credibility findings stating "[i]t is for the trial judge to make determinations of credibility, and an appeals body such as the Wage Appeals Board should be loathe to reverse credibility findings unless clear error is shown."

 

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

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

 

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.