B-176970, OCT 25, 1972

B-176970, OCT 25, 1972

DAVIS-BACON ACT - PREVAILING WAGE RATE - LOCAL UNION SCALE DECISION DENYING THE CLAIM OF WILLIAM DE BERGE, A PURCHASE AND HIRE ELECTRICIAN AT SEPULVEDA VETERANS HOSPITAL, CALIF., FOR AN INCREASE IN HIS WAGE TO THE LEVEL OF THE LOCAL UNION SCALE, RETROACTIVE TO THE DATE OF THE COLLECTIVE BARGAINING AGREEMENT ESTABLISHING THIS SCALE. THE UNION WAGE SCALE SET OUT IN A COLLECTIVE BARGAINING AGREEMENT IS BUT ONE FACTOR CONSIDERED BY THE DEPARTMENT OF LABOR IN ITS DETERMINATION OF THE "PREVAILING WAGE RATE" OF CERTAIN CONSTRUCTION WORKERS UNDER THE DAVIS -BACON ACT. THEREFORE, THE PREVAILING WAGE RATE MAY OR MAY NOT BE THE SAME AS THE LOCAL UNION SCALE.

TO MR. WILLIAM DE BERGE:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 7, 1972, REGARDING THE EFFECT OF A LOCAL COLLECTIVE BARGAINING AGREEMENT ON YOUR PRESENT SALARY. IN YOUR LETTER YOU MENTION THAT ON JUNE 1, 1972, AN AGREEMENT WAS ENTERED INTO BETWEEN THE NATIONAL ELECTRICAL CONTRACTORS ASSOCIATION AND THE INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 11 OF LOS ANGELES, RAISING THE WAGES OF LOCAL 11 MEMBERS BY $1 PER HOUR. YOU STATE THAT YOU ARE PRESENTLY EMPLOYED AS A PURCHASE AND HIRE ELECTRICIAN AT THE SEPULVEDA VETERANS HOSPITAL, SEPULVEDA, CALIFORNIA, AND THAT NEITHER THE ELECTRICIANS AT SEPULVEDA VETERANS HOSPITAL NOR EMPLOYEES AT OTHER FACILITIES IN THE AREA (WE ASSUME YOU ARE REFERRING TO ELECTRICIANS AT OTHER FACILITIES) HAVE RECEIVED THE $1 PER HOUR INCREASE IN SALARY. IT IS YOUR CONTENTION THAT UNDER THE DAVIS-BACON ACT, 40 U.S.C. 276A, YOU ARE ENTITLED TO BE PAID THE PREVAILING WAGE SCALE IN THE AREA, WHICH YOU APPARENTLY ASSUME IS THE SAME AS THAT PAID TO MEMBERS OF LOCAL 11.

THE DAVIS-BACON ACT REQUIRES THAT THE "ADVERTISED SPECIFICATIONS FOR EVERY CONTRACT IN EXCESS OF $2,000, TO WHICH THE UNITED STATES OR THE DISTRICT OF COLUMBIA IS A PARTY FOR CONSTRUCTION, ALTERATION, AND/OR REPAIR, INCLUDING PAINTING AND DECORATING OF PUBLIC BUILDINGS OR PUBLIC WORKS OF THE UNITED STATES OR THE DISTRICT OF COLUMBIA ***, AND WHICH REQUIRES OR INVOLVES THE EMPLOYMENT OF MECHANICS AND/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 SHALL BE PREVAILING ***."

WE ARE ADVISED THAT THE VETERANS ADMINISTRATION DOES PAY PREVAILING CONSTRUCTION INDUSTRY WAGES TO PURCHASE AND HIRE EMPLOYEES, SUCH AS YOURSELF, AS DETERMINED BY THE SECRETARY OF LABOR IN WAGE RATE SCHEDULES ISSUED UNDER AUTHORITY OF THE DAVIS-BACON ACT. IN THIS CONNECTION, THE SECRETARY OF LABOR MAKES "PREVAILING WAGE RATE" DETERMINATIONS WHICH ARE APPLICABLE TO SPECIFIED GEOGRAPHICAL AREAS OF THE COUNTRY AND ARE INCORPORATED INTO CERTAIN TYPES OF CONSTRUCTION CONTRACTS IN THAT AREA. UNDER THESE DETERMINATIONS THE PREVAILING WAGE RATE REMAINS THE SAME UNTIL THE SECRETARY OF LABOR MAKES ANOTHER DETERMINATION.

IN YOUR CASE, WE ARE ADVISED THAT THE PREVAILING WAGE RATE DETERMINATION (DECISION NO. AP-200) COVERING THE LOS ANGELES AREA BECAME EFFECTIVE JULY 7, 1972, AND LISTS ELECTRICIANS AT $8.95 PER HOUR PLUS $.86 PER HOUR FRINGE BENEFITS. WE ARE ALSO ADVISED THAT YOU ARE PRESENTLY BEING PAID AT THIS RATE. NEVERTHELESS, IT APPEARS THAT YOU BELIEVE THE WAGES PAID MEMBERS OF LOCAL 11, RATHER THAN THE RATE SET OUT IN DECISION NO. AP-200, IS THE PREVAILING RATE TO WHICH YOU ARE ENTITLED. YOU STATE THAT NOT ONLY ARE YOU ENTITLED TO HAVE YOUR WAGES INCREASED TO THE LEVEL OF THOSE PAID MEMBERS OF LOCAL 11, BUT THAT YOU SHOULD BE PAID THE DIFFERENCE BETWEEN YOUR WAGES AND THAT OF MEMBERS OF LOCAL 11, RETROACTIVE TO JUNE 1, 1972.

IT IS OUR UNDERSTANDING THAT COLLECTIVE-BARGAINING AGREEMENTS ARE ONLY ONE OF SEVERAL ELEMENTS WHICH ARE TAKEN INTO CONSIDERATION BY THE DEPARTMENT OF LABOR IN MAKING A WAGE RATE DETERMINATION AND, DEPENDING ON OTHER FACTORS, THE "PREVAILING WAGE RATE" MAY, OR MAY NOT, BE THE SAME AS THE UNION SCALE ESTABLISHED BY A COLLECTIVE BARGAINING AGREEMENT. IN THE ABSENCE OF EVIDENCE TO THE CONTRARY, WE MUST ASSUME THAT THE COLLECTIVE BARGAINING AGREEMENT OF JUNE 1, 1972, TO WHICH YOU REFER WAS ONE OF THE ELEMENTS TAKEN INTO CONSIDERATION BEFORE THE WAGE DETERMINATION OF JULY 7, 1972, WAS MADE, BUT SUCH RATE WAS NOT FOUND TO BE THE PREVAILING RATE. THAT ASSUMPTION IS CORRECT, IT WOULD NOT APPEAR THAT ANY ADJUSTMENT IN YOUR WAGE RATE, EITHER CURRENT OR RETROACTIVE, WOULD BE REQUIRED.

SHOULD YOU HAVE ANY FURTHER QUESTIONS REGARDING THIS MATTER, IT IS SUGGESTED THAT YOU CONTACT THE DIRECTOR, DIVISION OF WAGE DETERMINATIONS, U.S. DEPARTMENT OF LABOR, 711 14TH STREET, N.W., WASHINGTON, D.C. 20210, SINCE THAT IS THE OFFICE RESPONSIBLE FOR DETERMINING PREVAILING WAGE RATES.