B-159704, MAR. 4, 1968

B-159704: Mar 4, 1968

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SECRETARY: REFERENCE IS MADE TO THE LETTER DATED JULY 18. WERE DEVELOPED BY THE TRIBAL AUTHORITY WITH THE FINANCIAL ASSISTANCE OF THE PUBLIC HOUSING ADMINISTRATION (PHA). THIS ORDINANCE WAS APPROVED BY THE DEPARTMENT OF THE INTERIOR ON SEPTEMBER 22. IN THE COURSE OF DEVELOPMENT OF THE PROJECTS A CONSOLIDATED ANNUAL CONTRIBUTIONS CONTRACT COVERING AN ESTIMATED 149 DWELLING UNITS WAS ENTERED INTO BETWEEN THE PHA AND THE TRIBAL AUTHORITY. IT WAS ORIGINALLY DATED JUNE 7. WAS AMENDED SEVERAL TIMES THEREAFTER. IT APPEARS THAT IT IS UNUSUAL FOR A LOCAL HOUSING AUTHORITY TO PROCEED WITH THE DEVELOPMENT OF LOW-RENT HOUSING PROJECTS BY FORCE ACCOUNT RATHER THAN BY CONTRACT WITH PRIVATE CONSTRUCTION COMPANIES.

B-159704, MAR. 4, 1968

CONTRACTS - LABOR STIPULATIONS - WAGE RATE DETERMINATIONS DECISION TO SECRETARY OF HUD RE ADDITIONAL WAGE PAYMENTS FOR LABORERS EMPLOYED IN CONSTRUCTION OF THREE LOW RENT HOUSING PROJECTS ON PINE RIDGE INDIAN RESERVATION. WAGE ADJUSTMENTS TO LABORERS ON THREE HOUSING PROJECTS AS RECOMMENDED BY PHA AND IN WAGE SUPPLEMENTARY RATE DETERMINATIONS BY DEPARTMENT OF LABOR MAY BE MADE ON BASIS OF CLASSIFICATIONS OF SUCH WORKERS.

TO MR. SECRETARY:

REFERENCE IS MADE TO THE LETTER DATED JULY 18, 1966, FROM PATRICK C. O- LEARY, AUTHORIZED CERTIFYING OFFICER, HOUSING ASSISTANCE ADMINISTRATION, REQUESTING AN ADVANCE DECISION AS TO THE AMOUNT WHICH SHOULD BE PROVIDED THE OGLALA SIOUX TRIBAL HOUSING AUTHORITY FOR THE PURPOSE OF MAKING ADDITIONAL PAYMENTS OF WAGES TO LABORERS AND MECHANICS EMPLOYED IN THE CONSTRUCTION OF THREE LOW-RENT HOUSING PROJECTS ON THE PINE RIDGE INDIAN RESERVATION, SOUTH DAKOTA. IN THE CIRCUMSTANCES SET FORTH AND PARTICULARLY SINCE IT DOES NOT APPEAR THAT THE CERTIFYING OFFICER HAS BEFORE HIM A VOUCHER FOR CERTIFICATION, WE BELIEVE IT WOULD BE MORE APPROPRIATE FOR US TO ADDRESS OUR REPLY TO YOU AS THE SECRETARY OF THE DEPARTMENT RATHER THAN TO THE AUTHORIZED CERTIFYING OFFICER.

THE PROJECTS INVOLVED IN THIS MATTER, SD-1-1, SD-1-2 AND SD-1-3, WERE DEVELOPED BY THE TRIBAL AUTHORITY WITH THE FINANCIAL ASSISTANCE OF THE PUBLIC HOUSING ADMINISTRATION (PHA), HOUSING AND HOME FINANCE AGENCY, UNDER THE PROVISIONS OF THE UNITED STATES HOUSING ACT OF 1937, AS AMENDED, 42 U.S.C. 1401, ET. SEQ. THE TRIBAL COUNCIL OF THE OGLALA SIOUX INDIAN TRIBE ADOPTED AN ORDINANCE CREATING A HOUSING AUTHORITY FOR THE PINE RIDGE RESERVATION ON JULY 13, 1961. THIS ORDINANCE WAS APPROVED BY THE DEPARTMENT OF THE INTERIOR ON SEPTEMBER 22, 1961.

IN THE COURSE OF DEVELOPMENT OF THE PROJECTS A CONSOLIDATED ANNUAL CONTRIBUTIONS CONTRACT COVERING AN ESTIMATED 149 DWELLING UNITS WAS ENTERED INTO BETWEEN THE PHA AND THE TRIBAL AUTHORITY. IT WAS ORIGINALLY DATED JUNE 7, 1962, AND WAS AMENDED SEVERAL TIMES THEREAFTER. ACCORDANCE WITH SECTION 16 (2) OF THE UNITED STATES HOUSING ACT OF 1937, AS AMENDED, 42 U.S.C. 1416 (2), THE SPECIFICATIONS OF THE CONTRACT CONTAINED LABOR DEPARTMENT WAGE RATE DECISIONS NOS. AA-30,037 AND AB- 30,602. SECTION 115 (B) OF THE CONTRACT PROVIDED THAT EACH CONSTRUCTION CONTRACT IN EXCESS OF $2,000 ENTERED INTO BY THE LOCAL AUTHORITY IN CONNECTION WITH THE DEVELOPMENT OF ANY PROJECT SHALL REQUIRE THAT THERE BE PAID, AND THE LOCAL AUTHORITY SHALL ITSELF PAY, TO ALL LABORERS AND MECHANICS EMPLOYED THEREIN NOT LESS THAN THE WAGES PREVAILING IN THE LOCALITY AS PREDETERMINED BY THE SECRETARY OF LABOR. SECTION 119 (B) PROVIDED AS FOLLOWS:

"ALL DISPUTES CONCERNING PREVAILING WAGE RATES OR CLASSIFICATIONS ARISING UNDER THIS CONTRACT OR UNDER ANY CONTRACT IDENTIFIED IN SUBSECTION (B) OF SEC. 115 INVOLVING (1) SIGNIFICANT SUMS OF MONEY (2) LARGE GROUPS OF EMPLOYEES, OR (3) NOVEL OR UNUSUAL SITUATIONS SHALL BE PROMPTLY REPORTED TO THE PHA FOR DECISION OR, AT THE OPTION OF THE PHA, REFERRAL TO THE SECRETARY OF LABOR OF THE UNITED STATES. THE DECISION OF THE PHA OR THE SECRETARY OF LABOR, AS THE CASE MAY BE, SHALL BE FINAL. EACH CONTRACT IDENTIFIED IN SUBSECTION (B) OF SEC. 115, SHALL EMBODY THE PROVISIONS OF THIS SUBSECTION.'

IT APPEARS THAT IT IS UNUSUAL FOR A LOCAL HOUSING AUTHORITY TO PROCEED WITH THE DEVELOPMENT OF LOW-RENT HOUSING PROJECTS BY FORCE ACCOUNT RATHER THAN BY CONTRACT WITH PRIVATE CONSTRUCTION COMPANIES. IN FACT, SECTION 107 (D) OF THE STANDARD ANNUAL CONTRIBUTIONS CONTRACT, WHICH WAS INCLUDED IN THE CONTRACT UNDER CONSIDERATION HERE, PROVIDES THAT NO PART OF THE MAIN CONSTRUCTION WORK SHALL, UNLESS APPROVED IN ADVANCE BY THE PHA, BE PERFORMED BY FORCE ACCOUNT. HOWEVER, SINCE ALL OF THE BIDS SUBMITTED BY CONTRACTORS FOR CONSTRUCTION OF THE PROJECTS WERE CONSIDERED TOO HIGH, AND IN ORDER TO PROVIDE EMPLOYMENT AND TRAINING FOR INDIAN WORKERS AND TO HELP ALLEVIATE THE SERIOUS UNEMPLOYMENT SITUATION AT THE RESERVATION, THE TRIBAL AUTHORITY REQUESTED PERMISSION TO PROCEED WITH CONSTRUCTION OF THE PROJECTS BY FORCE ACCOUNT. THIS PROCEDURE WAS APPROVED BY THE CHICAGO REGIONAL OFFICE OF THE PHA AFTER EVALUATION OF THE COSTS INVOLVED AND THE OTHER CONSIDERATIONS DISCUSSED ABOVE. THE NEWLY-CREATED TRIBAL AUTHORITY, WHICH WAS EMBARKING ON ITS FIRST PROJECTS IN THE LOW-RENT HOUSING PROGRAM WAS TOTALLY INEXPERIENCED AND WAS COMPELLED TO LOOK TO THE PHA FOR GUIDANCE, PROJECT NO. SD-1-1 HAVING BEEN THE FIRST PHA PROJECT ON AN INDIAN RESERVATION IN THIS COUNTRY. THE DIRECTOR AND SUPERVISORY EMPLOYEES OF THE TRIBAL AUTHORITY HAD LITTLE KNOWLEDGE OF, OR PARTICIPATION IN, THE EMPLOYMENT AND WAGE-FIXING ACTIVITIES ON THESE PROJECTS, THE CLASSIFICATIONS AND WAGE RATES OF THE INDIAN WORKERS HAVING BEEN FIXED BY AN OFFICIAL OF PHA WHO APPEARS TO HAVE ACTED AS A DE FACTO SUPERINTENDENT FOR THE PROJECT. IT IS REPORTED THAT THE TRAINING PROGRAM WHICH RESULTED PRODUCED UNQUESTIONED BENEFITS IN OAPPORTUNITIES FOR EMPLOYMENT AND TRAINING FOR THE INDIAN WORKERS INVOLVED. THERE IS NO QUESTION BUT THAT THE TRIBAL AUTHORITY ACTED IN GOOD FAITH AND IN ACCORDANCE WITH DIRECTIONS OF PHA THROUGHOUT THE ENTIRE DEVELOPMENT PERIOD AND THAT UNDER APPLICABLE LAWS AND REGULATIONS ANY EXPENDITURE FOR ADJUSTMENT OF WAGES WOULD BE DIRECTLY REFLECTED IN INCREASED FEDERAL LOANS OR GRANTS, SINCE IN THIS CASE THE CONTRACTOR WAS THE TRIBAL AUTHORITY OPERATING ON A FORCE ACCOUNT BASIS AND ANY SUCH ADJUSTMENTS WOULD INCREASE THE DEVELOPMENT COSTS OF THE PROJECTS.

SUBSEQUENT TO THE COMPLETION OF PROJECT NO. SD-1-1, AND WHEN PROJECT SD-1 -2 WAS SUBSTANTIALLY COMPLETED, COMPLAINTS WERE RECEIVED BY THE PHA THROUGH THE DEPARTMENT OF LABOR THAT THE APPLICABLE LABOR STANDARDS WERE NOT BEING OBSERVED BY THE TRIBAL AUTHORITY. THE GIST OF THE COMPLAINTS CONCERNED QUESTIONS OF THE PROPRIETY OF CERTAIN CLASSIFICATIONS ASSIGNED, AND WAGE RATES PAID TO WORKERS. AFTER PRELIMINARY INVESTIGATION BY A LABOR RELATIONS OFFICER OF THE PHA, THE COMPLIANCE DIVISION OF THE HOUSING AND HOME FINANCE AGENCY WAS REQUESTED TO CONDUCT A FULL INVESTIGATION IN THE MATTER. REPORTS OF THIS INVESTIGATION DATED SEPTEMBER 24 AND 29, 1964, AND JANUARY 21 AND FEBRUARY 8, 1965, WERE MADE AVAILABLE TO THE DEPARTMENT OF LABOR, UPON ITS REQUEST.

ON FEBRUARY 16, 1965, THE FORMAL REPORT OF THE COMMISSIONER, PHA, ON THE MATTER WAS TRANSMITTED TO THE SECRETARY OF LABOR. THIS REPORT CONTAINED THE FOLLOWING DETERMINATION:

"IN VIEW OF THE FOREGOING, I AM UNABLE TO RECOMMEND ANY ADJUSTMENT OF THE WAGES ALREADY PAID ON THESE PROJECTS. ALSO, IN VIEW OF THE FACT THAT AN ORDER OF RESTITUTION WOULD INVOLVE SUBSTANTIAL EXPENDITURES OF FEDERAL FUNDS, AND IN LIGHT OF THE VIEWS OF THE COMPTROLLER GENERAL MENTIONED ABOVE AND THEIR RELEVANCE TO THE ISSUES IN THIS CASE, IT IS ALSO OUR CONCLUSION THAT NO SUCH ACTION COULD BE TAKEN BY THE PHA WITHOUT THE APPROVAL OF THE COMPTROLLER GENERAL.' THE REFERRED-TO VIEWS OF THE COMPTROLLER GENERAL ARE CONTAINED IN OUR DECISION OF MARCH 21, 1961, B- 144382, WHICH HOLDS THAT UNSKILLED WORKERS HAVE NO RIGHT TO JOURNEYMENS' CLASSIFICATIONS AND WAGE RATES UNDER THE DAVIS-BACON ACT. DESPITE SUCH DETERMINATION, HOWEVER, BY LETTER DATED NOVEMBER 18, 1965, TO THE COMMISSIONER OF THE PHA, THE SOLICITOR OF LABOR EXPRESSED THE VIEW THAT ADJUSTMENTS OF WORKERS' PAY IN THE AMOUNT OF $72,055.60 AS COMPUTED BY THE HHFA MUST BE MADE. SUBSEQUENTLY, BY LETTER DATED DECEMBER 21, 1965, THE GENERAL COUNSEL,PHA, PROPOSED ADJUSTMENTS AMOUNTING TO $11,423.93. LETTER DATED FEBRUARY 10, 1966, THE SOLICITOR OF LABOR INDICATED HIS DISAPPROVAL OF THAT PROPOSAL, STATING THAT IN THE ABSENCE OF A DETAILED EXPLANATION OF THE BASIS OF THE REDUCTION FROM $72,055.60 TO $11,423.93 HIS AGENCY WAS NOT IN A POSITION TO PROPERLY EVALUATE PHA'S COMPUTATIONS. LATER, BY LETTER DATED JUNE 1, 1966, TO THE GENERAL COUNSEL, THE SOLICITOR STATED THAT IN THE ABSENCE OF EVIDENCE TO THE CONTRARY, IT IS THE OPINION OF THE DEPARTMENT OF LABOR THAT BASED ON THE PRESENT RECORD RESTITUTION IN THE AMOUNT OF $65,733.12 APPEARS TO BE DUE AND THAT IT IS THEREFORE REQUESTED STEPS BE TAKEN TO CONCLUDE THE MATTER AT AN EARLY DATE.

THE WAGE ADJUSTMENTS PROPOSED BY THE HHFA REPORT OF INVESTIGATION MAY BE DIVIDED INTO FIVE CLASSES, AS FOLLOWS:

1. TO ADJUST WAGES PAID TO WORKERS CLASSED AS JOURNEYMEN BUT PAID AT RATES LESS THAN THOSE FURNISHED BY THE LABOR DEPARTMENT;

2. TO ADJUST WAGES PAID TO WORKERS CLASSED AS LABORERS OF THE SEVERAL KINDS LISTED IN THE WAGE DETERMINATIONS BUT PAID AT LESS THAN SCHEDULE RATES;

3. TO ADJUST WAGES PAID TO WORKERS CLASSED AS APPRENTICES TO THE SCHEDULED RATES FOR JOURNEYMEN; NO APPROVED APPRENTICESHIP PROGRAM HAVING BEEN IN EFFECT ON THE PROJECTS, ALTHOUGH APPRENTICE RATES WERE INCLUDED IN THE SCHEDULES;

4. TO ADJUST WAGES PAID TO WORKERS CLASSED BY THE LOCAL AUTHORITY AS BLOCK LAYERS TO THE RATES DETERMINED FOR BRICKLAYERS, NO BLOCK LAYER RATES OR CLASSIFICATION HAVING BEEN INCLUDED IN EITHER OF THE WAGE DETERMINATION SCHEDULES FURNISHED BY THE DEPARTMENT OF LABOR;

5.TO ADJUST WAGES PAID TO WORKERS CLASSED AS HELPERS OF VARIOUS CATEGORIES OF TRADES TO THE SCHEDULED RATES FOR JOURNEYMEN OF THOSE CATEGORIES, NO SUCH HELPER RATES OR CLASSIFICATIONS HAVING BEEN INCLUDED IN THE SCHEDULES.

AS TO THE FIRST TWO CLASSES, IT WAS THE POSITION OF PHA THAT MANY OF THE WORKERS EMPLOYED AS JOURNEYMEN OR AS LABORERS IN THE LISTED CATEGORIES DID NOT IN FACT POSSESS ADEQUATE SKILLS TO BE CONSIDERED AS FULLY QUALIFIED BY INDUSTRY STANDARDS, AND THE WAGES PAID THEM WERE FIXED WITH REFERENCE TO THEIR ACTUAL ABILITY AS DEMONSTRATED TO AND APPRAISED BY THE SUPERVISORY PERSONNEL ON THE PROJECTS. AS STATED IN THE FINDINGS OF THE COMMISSIONER, PHA, IN HER REPORT TO THE SECRETARY OF LABOR DATED FEBRUARY 18, 1965,"THERE IS NO QUESTION THAT THE PRINCIPLE AND PATTERN OF EMPLOYMENT UNDERTAKEN WAS THAT OF A TRAINING AND EMPLOYMENT PROGRAM FOR BASICALLY UNSKILLED WORKERS.'

NEVERTHELESS, THE POLICY AND PROGRAM FOLLOWED, HOWEVER MERITORIOUS IN ITS OBJECTIVES, WERE IN CONTRAVENTION OF THE SPECIFIC STATUTORY REQUIREMENTS OF SECTION 16 OF THE UNITED STATES HOUSING ACT OF 1937. WHILE MANY OF THE WORKERS EMPLOYED ON THE PROJECTS MAY HAVE BEEN PLACED ON THE PAYROLLS IN CLASSIFICATIONS FOR WHICH THEIR QUALIFICATIONS FELL FAR SHORT OF TRADE STANDARDS, WE ARE UNABLE TO FIND ANY LEGAL GROUND FOR DISREGARDING THE CLASSIFICATIONS ASSIGNED OR FOR REFUSING TO ADJUST THE WAGES PAID TO SUCH WORKERS TO THE RATES INCLUDED IN THE WAGE DETERMINATIONS FOR THE CLASSIFICATIONS IN WHICH SUCH WORKERS WERE LISTED.

WITH RESPECT TO THOSE WORKERS CLASSIFIED AS APPRENTICES, IT APPEARS THAT AT THE OUTSET IT WAS ANTICIPATED THAT AN APPROVED APPRENTICESHIP PROGRAM WOULD BE ESTABLISHED, AND BONA FIDE EFFORTS TO THAT END WERE MADE, BUT FAILED APPARENTLY BECAUSE OF A LACK OF COOPERATION FROM THE LABOR UNIONS. THE WAGE DETERMINATIONS FURNISHED DID, HOWEVER, INCLUDE RATES FOR APPRENTICES, AND IN LINE WITH THE VIEWS STATED IN OUR DECISION OF MARCH 21, 1961, B-144382, WE ARE OF OPINION THAT PAYMENT OF JOURNEYMEN'S WAGE RATES TO WORKERS CLASSED AS APPRENTICES, MERELY BECAUSE OF THIS FAILURE OF APPROVAL OF THE PROPOSED APPRENTICESHIP PROGRAM, WOULD BE AN UNREASONABLE BURDEN ON THE PROJECT. SINCE IT IS OUR UNDERSTANDING THAT THE FIGURE OF $65,733 PROPOSED BY THE SOLICITOR'S LETTER OF JUNE 1, 1966, RESULTS FROM THE DELETION OF APPRENTICE RATE ADJUSTMENTS FROM HHFA'S ORIGINAL FIGURE OF $72,055, IT WOULD APPEAR THERE IS NO LONGER ANY CONTROVERSY ON THIS POINT.

THE REMAINING QUESTIONS, UNDER WHAT WE HAVE CLASSED AS THE FOURTH AND FIFTH SITUATIONS, INVOLVE WORKERS WHO WERE LISTED ON THE PROJECT PAYROLLS IN CATEGORIES OR CLASSIFICATIONS NOT LISTED OR PROVIDED FOR IN THE WAGE DETERMINATIONS. IN THAT SITUATION, SECTION 5.6 (C) (29 C.F.R. 5.6 (C), 1961 SUPP.) OF THE REGULATIONS RELATIVE TO ISSUANCE OF WAGE RATE DETERMINATIONS, AS PROMULGATED BY THE DEPARTMENT OF LABOR AND IN EFFECT AT THE TIME THE CONTRACT IN QUESTION WAS ENTERED INTO WITH THE LPA, PROVIDED, IN PERTINENT PART, AS FOLLOWS:

"/C) * * * WHERE CLASSIFICATIONS OF LABORERS AND MECHANICS ARE DESIRED UNDER ANY OF THE OTHER STATUTES LISTED IN SEC. 5.1 WHICH WERE NOT INCLUDED IN THE ORIGINAL DECISION, A SUPPLEMENTARY WAGE DETERMINATION SHALL BE REQUESTED BY THE AGENCY HEAD.'

SINCE THE FOREGOING APPEARS TO REPRESENT A PROPER EXERCISE OF THE DEPARTMENT'S REGULATORY AUTHORITY UNDER REORGANIZATION PLAN NO. 14, AND SINCE THE PROGRAM UNDER WHICH THE INSTANT CONTRACT WAS PERFORMED APPEARS TO BE INCLUDED WITHIN THE "OTHER STATUTES LISTED IN SEC. 5.1" REFERRED TO IN THE REGULATION, WE MUST CONCLUDE THAT PHA, WHEN FACED WITH THE KNOWLEDGE THAT ADDITIONAL CLASSIFICATIONS OF WORKERS SUCH AS HELPERS AND BLOCK LAYERS WOULD BE REQUIRED IN PERFORMING THE WORK, WAS REQUIRED TO REQUEST A SUPPLEMENTARY WAGE DETERMINATION CONTAINING RATES FOR SUCH CLASSIFICATIONS FROM THE DEPARTMENT OF LABOR. HAD THIS BEEN DONE, AND HAD THE DEPARTMENT BEEN ABLE TO DETERMINE THAT A PREVAILING WAGE RATE FOR SUCH CLASSIFICATIONS EXISTED IN THE AREA, IT WOULD CERTAINLY APPEAR THAT THE LPA WOULD HAVE BEEN REQUIRED TO PAY HELPERS AND BLOCK LAYERS AT THE RATES PRESCRIBED FOR SUCH CLASSIFICATIONS IN THE SUPPLEMENTARY DETERMINATION. SEE NO VALID BASIS UPON WHICH IT MAY BE CONTENDED THAT FAILURE OF PHA TO REQUEST SUCH A SUPPLEMENTARY DETERMINATION SHOULD OPERATE TO PERMIT THE LPA TO PAY AT LESSER RATES THAN THOSE WHICH THE DEPARTMENT WOULD HAVE PRESCRIBED IN A SUPPLEMENTARY DETERMINATION, OR UPON WHICH IT MAY BE CONTENDED THAT SUCH RATES ARE NOW TO BE DETERMINED UNDER SECTION 119 (B) OF THE CONTRACT BY THE HOUSING ASSISTANCE ADMINISTRATION (AS SUCCESSOR TO THE PUBLIC HOUSING ADMINISTRATION) IF THE RECORDS OF THE DEPARTMENT OF LABOR ARE STILL ADEQUATE TO PERMIT A NUNC PRO TUNC DETERMINATION OF THE SAME QUESTIONS WHICH SHOULD PROPERLY HAVE BEEN RAISED IN A REQUEST FOR A SUPPLEMENTARY WAGE RATE DETERMINATION. ACCORDINGLY, IT IS SUGGESTED THAT THE DEPARTMENT OF LABOR BE ASKED FOR SUCH A SUPPLEMENTARY DETERMINATION AT ONCE, AND THAT THE WAGE RATES SET OUT THEREIN BE USED AS THE BASIS FOR ANY NECESSARY WAGE ADJUSTMENTS.

IN THIS CONNECTION, HOWEVER, IT IS OUR FURTHER OPINION THAT THE RECLASSIFICATION OF WORKERS FOR PURPOSES OF WAGE ADJUSTMENTS UNDER SUCH A SUPPLEMENTARY DETERMINATION IS A MATTER WITHIN THE SOLE DISCRETION OF YOUR DEPARTMENT. SEE THE FIRST TWO SENTENCES OF SECTION 5.6 (C) OF THE DEPARTMENT OF LABOR'S 1961 REGULATIONS, WHICH LIMITED THAT DEPARTMENT'S ROLE IN CLASSIFICATION DISPUTES TO QUESTIONS ARISING UNDER THE DAVIS-BACON ACT. SEE ALSO SECTION 16 (1) OF THE UNITED STATES HOUSING ACT OF 1937, AS AMENDED, 42 U.S.C. 1416 (1), WHICH CONFERS UPON YOUR DEPARTMENT THE SAME AUTHORITY TO MAKE FINDINGS AS TO PERSONS AND FIRMS WHICH HAVE DISREGARDED THEIR OBLIGATIONS, AND TO DISBURSE UNDERPAYMENTS TO LABORERS AND MECHANICS, AS IS CONFERRED UPON OUR OFFICE BY THE DAVIS-BACON ACT. INDICATED IN OUR DECISION B 144382, MARCH 21, 1961, IT IS OUR OPINION THAT SUCH AUTHORITY INCLUDES THE AUTHORITY TO MAKE FINAL DETERMINATIONS ON CLASSIFICATION QUESTIONS.

IN THE EVENT THE DEPARTMENT OF LABOR IS UNABLE TO COMPLY WITH YOUR REQUEST FOR A NUNC PRO TUNC SUPPLEMENTARY WAGE RATE DETERMINATION, AND YOUR DEPARTMENT IS OTHERWISE UNABLE TO REACH AGREEMENT WITH THE DEPARTMENT OF LABOR ON THE PROPER WAGE RATES FOR HELPERS AND BLOCK LAYERS, IT WOULD APPEAR THAT SETTLEMENT MAY BE MADE WITH THE WORKERS ON THE BASIS OF PHA'S RECOMMENDATION OF DECEMBER 21, 1965, TO THE DEPARTMENT OF LABOR, OR ON SUCH OTHER BASIS AS YOUR DEPARTMENT MAY CONCLUDE IS PROPER. SEE THE FINALITY PROVISIONS OF 42 U.S.C. 1406. HOWEVER, IRRESPECTIVE OF WHETHER YOUR DETERMINATIONS OF THE AMOUNTS DUE INDIVIDUAL WORKERS ARE BASED UPON ADDITIONAL CLASSIFICATIONS AND WAGE RATES SET OUT IN A SUPPLEMENTARY WAGE RATE DETERMINATION, UPON AGREEMENT WITH THE DEPARTMENT OF LABOR, OR UPON THE CLASSIFICATIONS AND WAGE RATES AS DETERMINED BY YOUR DEPARTMENT, IT IS OUR OPINION THAT SUCH CLASSIFICATIONS SHOULD BE TRULY REFLECTIVE OF THE INDIVIDUAL WORKERS SKILLS AS INDICATED BY THE CLASSIFICATIONS UNDER WHICH THE WORKERS ARE CARRIED ON THE SEVERAL PAYROLLS, AND THAT ANY RECLASSIFICATION AND WAGE ADJUSTMENT WHICH WOULD RESULT IN PAYMENT OF JOURNEYMEN'S WAGES TO A WORKER WHO IS NOT SHOWN AS A JOURNEYMAN ON THE PAYROLLS WOULD BE IMPROPER. SEE B-144382, MARCH 21, 1961; B-147602, JANUARY 23, 1963.

A COPY OF THIS LETTER HAS BEEN TRANSMITTED TO THE SECRETARY OF LABOR, AND IT IS REQUESTED THAT THIS OFFICE BE ADVISED RELATIVE TO YOUR FINAL DISPOSITION OF THE MATTER.