- Referenced Appeals Board Cases

REFERENCE CASE NO. 1

Fry Brothers Corp., WAB Case No. 76-6 (June 14, 1977)

Pursuant to the WAB decision in Fry Brothers Corp., WAB Case No. 76-6, dated June 14, 1977, the proper classification for work performed on a particular Davis-Bacon covered project by laborers and mechanics is that classification used by contractors whose wage rates were found to be prevailing in the area and incorporated in the applicable wage determination. Accordingly, under the Fry Brothers Corp. decision, the classification practices utilized in the appropriate sector for such construction projects in the area in question must be used to determine the proper classification for work on this project.

Note: The above synopsis is provided for information purposes only. The full text of the decision can be obtained from the ARB and is available at: https://www.dol.gov/agencies/oalj/topics/libraries/LIBDBA

REFERENCE CASE NO. 2

Tower Construction, WAB Case No 94-17 (February 28, 1995)

In this case, the WAB confirmed the Administrator's ruling concerning the appropriate rate to be approved when the missing classification is in a separate and distinct subgroup.

The Board stated as follows:

  1. In administering the conformance process Wage and Hour further groups classifications within the broad category of power equipment operators and distinguishes them from other skilled classifications since the operators are a 'separate and distinct subgroup of construction worker classifications.' [citation omitted]. Thus, when conforming omitted power equipment operator rates, Wage and Hour only looks to listed equipment operator rates for determining a reasonable relationship. Conversely, omitted skilled classifications are not conformed at operator rates. The unique skills and duties of power equipment operators are sufficiently distinguishable from the skills of mechanics in skilled construction trades, such that the Administrator's rejection of the equipment operator rates was well within the discretion granted her under the regulation . . . .

The Board further noted that the contract wage determination in this case also listed a truck driver classification and noted that truck driver skills are more akin to those of operators, that the truck driver rate was below that listed for an unskilled laborer, and that the Administrator also excluded that truck driver rate from consideration in determining the appropriate conformed rate for the skilled crafts in question. The Board concluded that:

  1. where a rate within the clearly distinct equipment operator group is the 'floor' for a wage determination, it is reasonable to exclude those rates from consideration and conform missing skilled classifications to the next higher level for a skilled trade.

In this case, the Board also reiterated important positions it had stated in prior rulings, to the effect that:

  1. a party seeking conformed classifications and rates 'may not rely on a wage determination granted to another party regardless of the similarity of the work in question.' Inland Waters Pollution Control, Inc., WAB Case No. 94-12 (Sept. 30, 1994) slip op. at pp. 7-8."

and further that:

  1. a contractor could not prospectively rely on Wage and Hour's prior approval of conformed classifications and rates for application to a contract performed at the same location. E&M Sales, Inc., WAB Case No. 91-17 (Oct. 4, 1991).

Note: The above synopsis is provided for information purposes only. The full text of the decision can be obtained from the ARB and is available at: https://www.dol.gov/agencies/oalj/topics/libraries/LIBDBA

REFERENCE CASE NO. 3

M.Z. Contractors Co., Inc., WAB Case No. 92-06 (August 25, 1992)

The WAB remanded this matter to the WHD for further proceedings after the Acting Administrator had approved the addition (conformance) of an "insulator" classification, for pipe insulation work, at a wage rate equal to the rate listed on the wage determination for "laborers." The WHD approval was in accordance with the former policy of approving conformance of a proposed rate for a skilled classification of worker so long as the proposed rate was equal to or exceeded the lowest rate for a skilled classification already contained in the contract wage determination. (The painters' rate in the wage determination was lower than the laborers' rate). The Board rejected this former WHD policy in its application to the present case because almost all the skilled classifications in the contract wage determination had wage rates substantially higher than the laborers' rate. The Board ruled it was appropriate for the WHD to select the particular method to determine what conformed rate would meet the third regulatory requirement of bearing a reasonable relationship to the wage rates contained in the wage determination.

Note: The above synopsis is provided for information purposes only. The full text of the decision can be obtained from the ARB and is available at: https://www.dol.gov/agencies/oalj/topics/libraries/LIBDBA

REFERENCE CASE NO. 4

American Building Automation, ARB Case No. 00-067 (March 30, 2001)

In this case, the ARB concluded that the WHD Administrator properly denied a request for the addition of a "Building Automation and Controls Technician" (BACT) classification. The Administrator determined that the work of the proposed BACT classification was performed by another classification already found within the wage determination, and the ARB affirmed the Administrator's denial of the conformance request.

The subcontractor who requested the BACT classification asserted that the work involved did not fall squarely within any single trade classification in the wage determination and that such workers had to be knowledgeable in all of the traditional trades, including electrical, mechanical, telecommunications and networks. The Davis-Bacon wage determination in the contract in question included a union wage rate for the plumber classification. Believing that the work to be performed by the proposed BACT classification might fall within the work performed by employees classified as plumbers, the WHD inquired into trade jurisdiction practices under the collective bargaining agreement negotiated by the Plumbers' local union. The union provided a copy of its collective bargaining agreement and documentation of several construction projects where this work had been performed by workers classified and paid as plumbers. Based on this data, the Administrator determined that the first criterion for establishing a new classification under the conformance process was not satisfied.

In its decision affirming the Administrator's determination, the ARB noted that "[a] conformance request does not call for a de novo evaluation of prevailing local practices or wage rates, questions that might appropriately be raised in a pre-award request for review and reconsideration of a wage determination under 29 C.F.R. § 1.8" and that:

  1. [I]t is well-established that in a conformance situation the Division is not required to determine that a classification in the wage determination actually is the prevailing craft for the tasks in question, only that there is evidence to establish that the classification actually performs the disputed tasks in the locality. [citations to prior ARB and WAB decisions omitted)

Note: The above synopsis is provided for information purposes only. The full text of the decision can be obtained from the ARB and is available at: https://www.dol.gov/agencies/oalj/topics/libraries/LIBDBA

REFERENCE CASE NO. 5

Swanson's Glass, WAB Case No. 89-20 (April 29, 1991)

In this case, the WAB affirmed the WHD Administrator's denial of a request for the addition of a glazier classification on the ground that the contractor's proposed rate did not bear a reasonable relationship to the rates on the wage determination. The proposed wage rate was less than the lowest wage rate paid skilled classifications on the applicable wage determination, and also less than the hourly rate in the wage determination for laborers.

The WAB further characterized the petitioner's argument that the proposed glazier wage rate was "in reasonable conformity with the prevailing wage rate for glaziers for this locality" as essentially challenging the applicable wage determination, and emphasized that "the Board has consistently ruled that in order for a challenge to a wage determination to be timely, the challenge must be made prior to contract award (or the start of construction if there is no contract award)."

The contractor's contention that the contracting officer approved its proposed rate was also rejected. The WAB noted that the conformance regulations do not give the contracting officer final approval, and even if the contracting agency had described its actions as authoritative approval, erroneous contracting agency advice does not bar the DOL from requiring payment of the appropriate rate.

The Board also stated the WHD's failure to deny the requested classification within the 30-day timeframe contemplated by the regulations is not determinative, since this regulation is not jurisdictional. The conformance regulations do not provide that any failure by the Administrator to act within 30 days constitutes approval or acquiescence in the proposed classification or wage rate, and the absence of a response from the Administrator in the 30-day time period referenced in Section 5.5(a)(1)(ii)(B) therefore does not provide a basis to presume the requested classification and wage rate have been approved.

Note: The above synopsis is provided for information purposes only. The full text of the decision can be obtained from the ARB and is available at: https://www.dol.gov/agencies/oalj/topics/libraries/LIBDBA



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