B-152647, MAY 21, 1964

B-152647: May 21, 1964

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JOSEPH KINDER: REFERENCE IS MADE TO YOUR LETTER OF APRIL 16. YOUR CLAIM WAS DISALLOWED BY OUR OFFICE. A REPORT RELATING TO YOUR CLAIM WAS THE SUBJECT OF OUR LETTER DATED MARCH 16. A COPY OF WHICH WAS FURNISHED TO YOU BY MR. SINCE THE FACTS AND CIRCUMSTANCES INVOLVED IN YOUR CLAIM WERE SET FORTH RATHER FULLY IN OUR LETTER TO MR. YOUR LETTER ALSO STATES THAT YOU WERE QUESTIONED BY A MR. TO WHICH YOU REPLIED TRUTHFULLY AND THAT A DAY OR TWO LATER YOU WERE LAID OFF FROM WORK. YOU ALLEGE THAT YOU WENT TO THE JOB SITE EVERY DAY THEREAFTER BUT WERE TOLD THAT THERE WAS NO WORK AVAILABLE ALTHOUGH NEW MEN WERE BEING HIRED AT THE TIME. YOU CLAIM THAT MONEY IS OWED YOU FOR UNDERPAYMENT OF WAGES AND FOR LOST WAGES FROM JANUARY 9.

B-152647, MAY 21, 1964

TO MR. JOSEPH KINDER:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 16, 1964, CONCERNING YOUR CLAIM FOR WAGE ADJUSTMENT BELIEVED DUE FOR WORK PERFORMED AS AN EMPLOYEE OF DORALD ENGINEERING COMPANY, AT WHEELING-OHIO COUNTY AIRPORT, WHEELING, WEST VIRGINIA, UNDER CONTRACT NO. FA 1-1385 AWARDED BY THE FEDERAL AVIATION AGENCY (FAA) ON JUNE 24, 1960. BY LETTER DATED JANUARY 8, 1964 (CLAIM NO. Z-2225401), YOUR CLAIM WAS DISALLOWED BY OUR OFFICE. YOUR LETTER OF APRIL 16 REQUESTS RECONSIDERATION OF THIS DISALLOWANCE.

A REPORT RELATING TO YOUR CLAIM WAS THE SUBJECT OF OUR LETTER DATED MARCH 16, 1964, TO THE HONORABLE ARCH A. MOORE, JR., A COPY OF WHICH WAS FURNISHED TO YOU BY MR. MOORE. SINCE THE FACTS AND CIRCUMSTANCES INVOLVED IN YOUR CLAIM WERE SET FORTH RATHER FULLY IN OUR LETTER TO MR. MOORE WE NEED NOT REPEAT THEM HERE.

YOUR LETTER OF APRIL 16 STATES, IN SUBSTANCE, THAT DURING THE INVESTIGATION OF THE DORALD ENGINEERING COMPANY FOR ALLEGED VIOLATIONS OF THE MINIMUM WAGE PROVISIONS OF THE DAVIS-BACON ACT, THE FAA SENT QUESTIONNAIRES TO EMPLOYEES OF THE COMPANY; THAT THE MAILING OF THESE QUESTIONNAIRES CAME TO THE ATTENTION OF MESSRS. KENT (OWNER) AND O CONNEL (JOB FOREMAN); THAT AS A RESULT THEREOF MR. KENT CALLED A MEETING OF ALL THE INVOLVED EMPLOYEES, EXCEPT YOU, FOR THE PURPOSE OF COACHING THE MEN ON HOW TO ANSWER THE QUESTIONNAIRE; AND THAT MESSRS. KENT AND O-CONNEL HELPED THE MEN FILL IN FALSE ANSWERS ON THE QUESTIONNAIRE. YOUR LETTER ALSO STATES THAT YOU WERE QUESTIONED BY A MR. CORNBALL FROM THE OFFICE OF MR. N. UNTERBERG, ACTING CHIEF, PROCUREMENT SECTION, FAA, TO WHICH YOU REPLIED TRUTHFULLY AND THAT A DAY OR TWO LATER YOU WERE LAID OFF FROM WORK. YOU ALLEGE THAT YOU WENT TO THE JOB SITE EVERY DAY THEREAFTER BUT WERE TOLD THAT THERE WAS NO WORK AVAILABLE ALTHOUGH NEW MEN WERE BEING HIRED AT THE TIME. ACCORDINGLY, YOU CLAIM THAT MONEY IS OWED YOU FOR UNDERPAYMENT OF WAGES AND FOR LOST WAGES FROM JANUARY 9, 1961, TO JUNE 13, 1961.

YOUR CLAIM WAS DISALLOWED BY OUR OFFICE ON TWO GROUNDS. FIRST, WE CONCLUDED THAT THE DORALD ENGINEERING COMPANY, IN UTILIZING LABORERS FOR THE WORK IN ISSUE, DID NOT VIOLATE THE PROVISIONS OF ITS CONTRACT RELATING TO THE PAYMENT OF PREDETERMINED MINIMUM WAGES BECAUSE THE TEST USED BY THE FAA (PREPONDERANT LOCAL PRACTICE) IN DEFINING THE JOB CONTENT OF THE IRONWORKER CLASSIFICATION, WAS NEITHER REQUIRED NOR PERMITTED BY THE TERMS OF THE DAVIS-BACON ACT. SECONDLY, WE HELD THAT EVEN WERE WE TO ASSUME THAT THE IRONWORKER RATE, RATHER THAN THE LABORER RATE, WAS APPLICABLE UNDER THE CONTRACT, THERE WAS NO EVIDENCE BEFORE US TO ESTABLISH, AS A FACT, THAT YOU PERFORMED THE REQUIRED SERVICES OF AN IRONWORKER TO ENTITLE YOU TO ADDITIONAL PAYMENTS UNDER THE PROVISIONS OF THE DAVIS-BACON ACT.

WITH RESPECT TO THESE TWO POINTS, YOU FAIL TO OFFER ANY LEGAL AUTHORITY TO SUPPORT A CONCLUSION THAT THE TEST USED BY THE FAA IN DEFINING THE JOB CONTENT OF THE WORK INVOLVED WAS PROPER, AND YOU ALSO FAIL TO OFFER ANY EVIDENCE TO INDICATE THAT YOU ACTUALLY PERFORMED SERVICES WHICH ENTITLE YOU TO ADDITIONAL PAYMENTS UNDER THE PROVISIONS OF THE DAVIS-BACON ACT. WHILE THE RECORD AVAILABLE TO US IS INCONCLUSIVE ON THE QUESTION OF WHETHER MR. KENT DID, OR DID NOT, COERCE HIS EMPLOYEES INTO SUBMITTING FALSE INFORMATION ON THE QUESTIONNAIRES, THE ACCURACY OF YOUR ALLEGATIONS IN THIS REGARD IS NOT CONTROLLING ON THE LEGAL ISSUE INVOLVED IN YOUR CLAIM BECAUSE, EVEN IF THE ANSWERS TO THE QUESTIONNAIRE WERE OPPOSITE TO THOSE SUBMITTED BY THE EMPLOYEES, THEY WOULD HAVE NO BEARING ON THE VALIDITY OF THE TEST USED BY THE FAA IN DEFINING THE JOB CONTENT OF THE WORK. OUR OFFICE WAS AWARE OF SIMILAR ALLEGATIONS PREVIOUSLY MADE BY YOU IN LETTERS DATED NOVEMBER 29, 1962, TO THE SOLICITOR OF LABOR AND FEBRUARY 18, 1963, TO OUR OFFICE, BUT SINCE WE CONSIDERED THEM IMMATERIAL TO THE BASIC LEGAL QUESTION OF WHETHER THE CONTRACTOR WAS REQUIRED TO APPLY THE IRONWORKER RATE TO THE WORK INVOLVED, IT WAS CONSIDERED UNNECESSARY TO DISCUSS THESE ALLEGATIONS.

IT SHOULD ALSO BE NOTED, IN CONNECTION WITH YOUR CLAIM FOR LOST WAGES FOR THE PERIOD YOU WERE UNEMPLOYED, THAT THE DAVIS-BACON ACT CONTAINS NO PROVISION FOR THE PAYMENT OF SUCH WAGES BUT IS CONFINED SOLELY TO THE ADJUSTMENT OF UNDERPAYMENTS IN WAGES RECEIVED FOR WORK ACTUALLY PERFORMED.

SINCE YOUR LETTER FAILS TO PRESENT ANY NEW MATTER NOT PREVIOUSLY CONSIDERED IN OUR DISALLOWANCE OF YOUR CLAIM UNDER DATE OF JANUARY 8, 1964, THAT DISALLOWANCE IS AFFIRMED.