B-152117, MAR. 4, 1966

B-152117, MAR. 4, 1966

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO LETTER DATED JUNE 21, 1965 (ENGGC-L), FROM THE CORPS OF ENGINEERS TRANSMITTING A REPORT AND PERTINENT DOCUMENTS CONCERNING THE PROTEST OF BROWN AND ROOT, INC., AGAINST THE ACTION OF THE CORPS OF ENGINEERS IN WITHHOLDING THE SUM OF $100,000 OTHERWISE DUE BECAUSE OF ALLEGED VIOLATIONS OF THE DAVIS-BACON ACT, 40 U.S.C. 276A, UNDER CONTRACT NO. DA-16-047-CIVENG-60-41 FOR THE CONSTRUCTION OF THE OLD RIVER NAVIGATION LOCK IN POINTE COUPEE PARISH, LOUISIANA.

THE LOCK PROVIDES FOR NAVIGATION BETWEEN THE MISSISSIPPI RIVER AND THE RED AND ATCHAFALAYA RIVERS, AND THE AMOUNT OF THE CONTRACT WAS APPROXIMATELY $15,000,000. THE SITE OF THE WORK IS NEAR THE JUNCTION OF THE MISSISSIPPI RIVER AND OLD RIVER IN THE VICINITY OF INNIS, LOUISIANA, AND 70 MILES NORTH OF BATON ROUGE, LOUISIANA. THE CONTRACT CONTAINED THE PROVISIONS AND WAGE RATE DECISION REQUIRED BY THE DAVIS BACON ACT. WORK BEGAN IN SEPTEMBER OF 1959 AND WAS PHYSICALLY COMPLETED ABOUT DECEMBER 1, 1962. DURING THE COURSE OF THE WORK SOME DISPUTES AROSE BETWEEN THE CONTRACTOR AND THE CONTRACTING OFFICER CONCERNING THE PROPER CLASSIFICATION AND PAY FOR VARIOUS LABORERS AND MECHANICS. NOT ALL OF THE DISPUTES WHICH AROSE DURING THAT PERIOD HAD BEEN RESOLVED WHEN WORK WAS PHYSICALLY COMPLETED. ON OR ABOUT DECEMBER 13, 1962, WHILE STILL TRYING TO RESOLVE THE DISPUTES, THE NEW ORLEANS DISTRICT LABOR RELATIONS OFFICER OF THE CORPS WAS CONTACTED BY A PRIVATE ATTORNEY IN BEHALF OF 216 FORMER EMPLOYEES OF BROWN AND ROOT WHO HAD NUMEROUS CLASSIFICATION COMPLAINTS ARISING UNDER THE OLD RIVER LOCK CONTRACT.

UNDER THE CIRCUMSTANCES AND IN VIEW OF THE SCOPE OF THE PROBLEM, THE CHIEF OF ENGINEERS RECOMMENDED TO THE SOLICITOR OF LABOR THAT A PUBLIC HEARING BE HELD UNDER THE SOLICITOR'S AUSPICES. HOWEVER, BY LETTER DATED FEBRUARY 1, 1965, THE SOLICITOR OF LABOR REPLIED THAT IN HIS OPINION THE CASE DID NOT WARRANT THE REQUESTED HEARING AT THAT TIME.

THE CONTRACTING OFFICER WAS ADVISED OF THE SOLICITOR'S POSITION. HEALSO WAS INSTRUCTED TO MAKE (1) AN AREA PRACTICE SURVEY, (2) EVALUATION OF THE CLAIMS, AND (3) A COMPUTATION OF ANY RESTITUTION FOUND DUE THE WORKMEN.

NO EVIDENCE WAS FOUND TO INDICATE THAT BROWN AND ROOT WILLFULLY AND INTENTIONALLY MISCLASSIFIED WORKMEN. ON THE OTHER HAND, THE COMPLAINTS WERE VAGUE AND INDEFINITE AND THE WORKMEN DID NOT HAVE PERSONAL OR OTHER SIGNIFICANT RECORDS TO SUPPORT THEIR CLAIMS OR DISPROVE THE CONTRACTOR'S RECORDS. FURTHER THE SURVEY INDICATED THAT THE CONTRACTOR FOLLOWED THE PREVAILING AREA PRACTICE IN MOST OF ITS WORK ASSIGNMENTS.

ACCORDINGLY, FUNDS IN THE AMOUNT OF $100,000 WHICH HAD BEEN WITHHELD FROM ACCRUED PAYMENTS DUE THE CONTRACTOR TO COVER ALL OF THE ALLEGED WAGE UNDERPAYMENTS WERE REDUCED BY A RELEASE TO BROWN AND ROOT OF $89,700, LEAVING A BALANCE WITHHELD OF $10,300 TO COVER THE REMAINING ALLEGED UNDERPAYMENTS.

THE REPORT FORWARDED TO THIS OFFICE BY THE CORPS OF ENGINEERS UNDER DATE OF JUNE 21, 1965, ADVISES THAT SUCH REMAINING ALLEGED UNDERPAYMENTS STEM FROM WORK WHICH WAS PERFORMED BY WORKERS COMPLYING WITH A SUBSTANTIAL AREA PRACTICE, RATHER THAN WITH ONE OF A PREDOMINANT OR PREVAILING CHARACTER, AND WE HAVE BEEN ADVISED INFORMALLY THAT SUCH WORK IS DESCRIBED UNDER COMPLAINTS NO. 2 AND 23 OF THE SURVEY. HOWEVER, OUR EXAMINATION OF COMPLAINT NO. 23 INDICATES THAT THE SEVEN WORKERS COVERED THEREUNDER WERE FOUND TO HAVE BEEN PAID IN ACCORDANCE WITH THE PREVAILING PRACTICE. THEREFORE ASSUME THAT THE FAILURE TO RELEASE TO THE CONTRACTOR THE WITHHELD AMOUNT REPRESENTING UNDERPAYMENTS ALLEGED UNDER COMPLAINT NO. 23 IS ATTRIBUTABLE TO ERROR ON THE PART OF THE CORPS, WHICH WILL BE CORRECTED FORTHWITH.

WITH RESPECT TO COMPLAINT NO. 2, THE SURVEY SHOWS THAT 60 WORKERS WHO WERE REQUIRED TO USE SMALL AIR-POWERED TOOLS WERE FOUND TO HAVE BEEN CLASSIFIED AND PAID AS LABORERS, WHICH WAS IN ACCORDANCE WITH A SUBSTANTIAL AREA PRACTICE GIVEN A WEIGHTED VALUE OF 42 BY THE SURVEY, WHEREAS THE PREVAILING AREA PRACTICE OF CLASSIFYING SUCH WORKERS AS AIR TOOL OPERATORS WAS GIVEN A WEIGHTED VALUE OF 51 BY THE SURVEY. HOWEVER, THE SURVEY REPORT ALSO INDICATES THAT, BECAUSE OF THE GREATER FACTOR OF SAFETY AND HIGHER WORK EFFICIENCY FOR WEIGHT OF TOOL WHEN COMPARED TO ELECTRICAL TOOLS, THE CONTRACTOR CHOSE TO RELY HEAVILY ON AIR-POWERED TOOLS. TO FACILITATE THIS, A CENTRAL AIR COMPRESSION SYSTEM WAS SET UP AND AIR LINES WERE RUN OUT TO OPERATING LOCATIONS EQUIPPED WITH ADEQUATE CONNECTIONS FOR BOSES. UNDER THIS METHOD OF OPERATION, THE CONTRACTOR EMPLOYED NUMEROUS SMALL TOOLS RANGING AROUND 15 POUNDS IN WEIGHT, SUCH AS BUFFERS, GRINDERS, REAMERS, DRILLS, CHIPPING HAMMERS, IMPACT TOOLS FOR PEENING METAL, AND IMPACT WRENCHES. SOME ELECTRICAL TOOLS WERE AVAILABLE, AND WERE USED TO PERFORM THE SAME WORK, BUT BY AND LARGE, THE CONTRACTOR EMPLOYED TOOLS RUN BY AIR. IN CONNECTION WITH THEIR DUTIES IN A WORKING CREW THE WORKERS IN QUESTION USED THE SMALL AIR-POWER TOOLS TO PERFORM SUCH DUTIES AS GRINDING DOWN WELDED SEAMS, CHIPPING OFF HIGH SPOTS IN CONCRETE, BUFFING SURFACES OF METAL OR CONCRETE, REAMING HOLES, TIGHTENING OR LOOSENING NUTS, AND SIMILAR WORK. HOWEVER, IT DOES NOT APPEAR FROM THE SURVEY THAT THE DIFFERENCE IN HE AREA PRACTICES IN CLASSIFYING SUCH WORKERS AS BOTH LABORERS AND AIR TOOL OPERATORS WAS BASED UPON ANY ACTUAL DIFFERENCES IN THE WORK SKILLS, WHICH IS ESSENTIAL TO A DIFFERENTIATION OF INDIVIDUAL CLASSIFICATIONS OF WORKERS.

THE ESSENCE OF COMPLAINT NO. 2 IS THAT THESE TOOLS WERE AIR TOOLS AND THAT THE CLASSIFICATION OF WORKERS WHO PERFORMED WORK WITH THESE TOOLS SHOULD HAVE BEEN THAT OF AIR TOOL OPERATOR ($1.55 PER HOUR) RATHER THAN THAT OF LABORER ($1.35 PER HOUR). HOWEVER, REFERENCE TO THE WAGE RATE DECISION WHICH WAS INCORPORATED INTO THE CONTRACT SHOWS THAT UNDER THE HEADING "LOCKS, GATES AND APPURTENANCES," THE RELEVANT CLASSIFICATIONS OF WORKERS AND THE PREVAILING WAGE RATES ARE SET FORTH AS FOLLOWS:

TABLE

"LABORERS:

"AIR TOOL OP. (JACKHAMMER, VIBRATOR) $1.55

"UNSKILLED 1.35"

AS POINTED OUT IN THE SURVEY REPORT, THE ABOVE CLASSIFICATIONS OF WORKERS AND THE PREVAILING WAGE RATES APPEAR TO CONTEMPLATE THE CLASSIFICATION OF AIR TOOL OPERATOR AS COVERING ONLY THOSE WHO OPERATE JACKHAMMERS AND VIBRATORS AND NOT THOSE WORKMEN WHO, AS HERE, OPERATE SMALL AIR-POWERED TOOLS. ALSO, IN THE ONLY OTHER PLACE IN THE WAGE RATE DETERMINATION WHERE THE CLASSIFICATION FOR AIR TOOL OPERATORS APPEARS, WHICH IS UNDER THE HEADING "BUILDING CONSTRUCTION," THE CLASSIFICATION "AIR TOOL OP" IS LIMITED BY THE SAME PARENTHETICAL DESCRIPTION, "/JACKHAMMER, VIBRATOR).'

UNDER SUCH CIRCUMSTANCES WE CONCLUDE THAT THE CLASSIFICATION "AIR TOOL OP. (JACKHAMMER, VIBRATOR)" AS APPEARING IN THE WAGE RATE DETERMINATION FOR CONTRACT NO. DA-16-047-CIVENG-60-41 IMPLIEDLY EXCLUDED OPERATORS OF SMALL AIR TOOLS SUCH AS ARE INVOLVED IN CLAIM NO. 2.

THE DAVIS-BACON ACT, 40 U.S.C. 276A, PROVIDES THAT THE ADVERTISED SPECIFICATIONS FOR EVERY CONSTRUCTION CONTRACT IN EXCESS OF $2,000 WHICH REQUIRES THE EMPLOYMENT OF MECHANICS OR LABORERS SHALL CONTAIN A PROVISION STATING THE MINIMUM WAGES TO BE PAID VARIOUS CLASSES OF LABORERS AND MECHANICS WHICH SHALL BE BASED UPON THE WAGES THAT WILL BE DETERMINED BY THE SECRETARY OF LABOR TO BE PREVAILING FOR THE CORRESPONDING CLASSES OF LABORERS AND MECHANICS EMPLOYED ON PROJECTS OF CHARACTER SIMILAR TO THE CONTRACT WORK IN THE CITY, TOWN, VILLAGE OR OTHER CIVIL SUBDIVISION OF THE STATE IN WHICH TE WORK IS TO BE PERFORMED, AND THAT EVERY CONTRACT BASED UPON SUCH SPECIFICATIONS SHALL CONTAIN A STIPULATION THAT THE CONTRACTOR OR HIS SUBCONTRACTORS SHALL PAY ALL MECHANICS AND LABORERS EMPLOYED DIRECTLY UPON THE SITE OF THE WORK THE FULL AMOUNTS ACCRUED AT THE TIME OF PAYMENT COMPUTED AT WAGE RATES NOT LESS THAN THOSE STATED IN THE ADVERTISED SPECIFICATIONS.

THE LEGISLATIVE HISTORY OF THE DAVIS-BACON ACT DISCLOSES THAT ITS PURPOSE IS TO PREVENT A GOVERNMENT CONSTRUCTION CONTRACTOR FROM IMPORTING OUTSIDE LABORERS INTO AN AREA, WHICH LABORERS ACCEPT LOWER WAGES THAN THOSE PREVAILING IN THE LOCALITY FOR SIMILAR WORK, SO AS TO DEPRESS THE LOCAL SCALE OF WAGES. THE ACT GIVES THE SECRETARY OF LABOR FINAL AUTHORITY TO DETERMINE THE CLASSES OF WORKERS AND THE WAGE RATES HE DETERMINES TO BE PREVAILING FOR THE WORK CONTEMPLATED BY PARTICULAR INVITATIONS FOR BIDS. THE ACT, HOWEVER, GIVES THE GENERAL ACCOUNTING OFFICE FINAL AUTHORITY WITHIN THE GOVERNMENT TO DETERMINE THE PROPRIETY OF WITHHOLDINGS THEREUNDER SINCE, UNDER THE ACT, THE CONTRACTING OFFICER IS EMPOWERED TO WITHHOLD SO MUCH OF ACCRUED PAYMENTS DUE THE CONTRACTOR AS HE CONSIDERS NECESSARY TO MAKE UP THE DIFFERENCES DUE AGGRIEVED WORKMEN AND THE GENERAL ACCOUNTING OFFICE IS AUTHORIZED AND DIRECTED TO DISBURSE DIRECTLY ANY WAGES "FOUND DUE.'

THE AUTHORITY OF THE SECRETARY TO SPECIFY PREVAILING WAGE RATES BY CLASSES OF WORKERS IMPLIES THAT THE WAGE RATE DECISIONS ISSUED THEREUNDER INCLUDE ALL SUCH CLASSES OF WORKERS AS ARE NECESSARY FOR THE PROPER ACCOMPLISHMENT OF THE CONTRACT WORK. AS DISCUSSED ABOVE, THE CLASSIFICATION OF AIR TOOL OPERATOR, AS CONTAINED IN THE INSTANT WAGE RATE DECISION, IMPLIEDLY EXCLUDES THE OPERATORS OF SMALL AIR TOOLS SUCH AS ARE INVOLVED IN COMPLAINT NO. 2, AND SINCE THERE WAS A SUBSTANTIAL AREA PRACTICE TO CLASSIFY AND PAY SUCH OPERATORS AS LABORERS, WE ARE OF THE VIEW THAT THE CONTRACTOR WAS ENTITLED TO ASSUME THAT THE CLASSIFICATION (AND WAGE RATE) FOR LABORERS WAS THE ONE APPLICABLE TO OPERATORS OF SMALL AIR TOOLS IN THIS INSTANCE. ON SUCH A BASIS WE ARE UNABLE TO CONCLUDE THAT THE WORKMEN IN QUESTION WERE PAID WAGES AT RATES LESS THAN THOSE REQUIRED UNDER THE DAVIS-BACON ACT AND THE CONTRACT PROVISIONS.

IN VIEW OF THE FOREGOING THERE APPEARS TO HAVE BEEN NO PROPER BASIS FOR THE WITHHOLDINGS UNDER COMPLAINT NO. 2. ACCORDINGLY THE AMOUNT WITHHELD BECAUSE OF COMPLAINT NO. 2 SHOULD ALSO BE RELEASED TO THE CONTRACTOR.