B-133433, MAY 29, 1961

B-133433, MAY 29, 1961

TO CHAIRMAN, UNITED STATES ATOMIC ENERGY COMMISSION:

WE REFER TO A LETTER OF MAY 3, 1961, FROM YOUR ASSISTANT GENERAL MANAGER, REQUESTING A DECISION AS TO THE PROPRIETY OF AN AMENDMENT TO CONTRACT NO. AT/29-1/-1357, BETWEEN THE ATOMIC ENERGY COMMISSION AND LOS ALAMOS CONSTRUCTORS, INCORPORATED, TO AUTHORIZE DOUBLE TIME PAY FOR THE PERIOD FROM APRIL 14, 1958, TO FEBRUARY 29, 1960, FOR OVERTIME WORK PERFORMED BY IRONWORKERS.

THE RECORD SHOWS THAT LOS ALAMOS CONSTRUCTORS, INCORPORATED, PERFORMS WORK AT THE LOS ALAMOS INSTALLATION OF THE ATOMIC ENERGY COMMISSION (SUCH AS CONSTRUCTION, ALTERATION AND/OR REPAIR) WITHIN THE MEANING OF THE DAVIS -BACON ACT, UNDER COST-PLUS-A-FIXED-FEE CONTRACT NO. AT/29-1/-1357. SECTION 9 (A) OF APPENDIX "A" TO THE CONTRACT PROVIDES THAT CERTAIN SPECIFIED UNION AGREEMENTS ARE INCORPORATED BY REFERENCE. LISTED AMONG SUCH AGREEMENTS WAS THE MASTER LABOR AGREEMENT BETWEEN THE NEW MEXICO BUILDING AND CONSTRUCTION TRADES COUNCIL AND THE ASSOCIATED GENERAL CONTRACTORS (AGC), UP TO APRIL 1, 1958, THE EXPIRATION DATE OF THE MASTER LABOR AGREEMENT, THE IRONWORKERS UNION WAS A PARTY TO THE MASTER LABOR AGREEMENT. WITH RESPECT TO IRONWORKERS THE AGREEMENT STATED IN PART THAT:

"OVERTIME RATES: ALL OVERTIME AND SATURDAY, SUNDAY AND HOLIDAY WORK, DOUBLE TIME.'

AFTER APRIL 1, 1958, THE IRONWORKERS UNION DESIRED A SEPARATE CONTRACT WITH THE AGC. ON APRIL 12, 1958, SUCH CONTRACT WAS SIGNED, COVERNING ALL ISSUES EXCEPT A HIRING-HALL PROVISION WHICH WAS STILL OPEN TO NEGOTIATION. NO COPIES OF THIS CONTRACT WERE SUPPLIED TO MEMBERS OF THE AGC. THE IRONWORKERS RETURNED TO WORK ON APRIL 14, 1958, UNDER THE NEW CONTRACT WHICH INCLUDED NEW WAGE RATES AND THE PREVIOUS DOUBLE TIME PROVISION FOR OVERTIME WORK. THE CONTRACTORS IN NEW MEXICO BEGAN PAYING THE NEW WAGE RATES FROM THAT DATE, AND LOS ALAMOS CONSTRUCTORS, INCORPORATED, ALSO PAID ITS IRONWORKERS THE NEW RATES FROM THAT DATE.

IT IS REPORTED THAT THE NEW RATE WAS NOT IMMEDIATELY FORMALLY REFLECTED IN CONTRACT NO. AT/29-1/-1357 BECAUSE AEC AND LOS ALAMOS CONSTRUCTORS, INCORPORATED, BOTH ASSUMED THAT COPIES OF THE APRIL 12, 1958, CONTRACT BETWEEN THE IRONWORKERS UNION AND THE AGC WOULD BE SOON DISTRIBUTED TO AGC MEMBERS, AND THEN IT WOULD BE INCORPORATED BY REFERENCE INTO THE AEC CONTRACT. ON OCTOBER 29, 1958, SINCE COPIES OF THE UNION CONTRACT ACCEPTABLE TO AEC WERE STILL NOT AVAILABLE, THE NEW IRONWORKER WAGE RATES WERE SPECIFICALLY INCLUDED IN THE AEC CONTRACT, RETROACTIVE TO APRIL 14, 1958, BY A REIMBURSEMENT AUTHORIZATION SIGNED BY BOTH PARTIES. HOWEVER, THE DOUBLE TIME PROVISION WAS INADVERTENTLY OMITTED. WHEN ITS ABSENCE WAS NOTICED, A REIMBURSEMENT AUTHORIZATION WAS ISSUED ON MARCH 10, 1960, TO PROVIDE DOUBLE TIME PAYMENT TO IRONWORKERS FOR OVERTIME WORK. THE FOLLOWING PROVISION WAS ALSO ADDED:

"IT IS AGREED BY THE PARTIES THAT THE ISSUANCE AND ACCEPTANCE OF THIS REIMBURSEMENT AUTHORIZATION BY THE PARTIES SHALL BE WITHOUT PREJUDICE TO THE RIGHTS OF EITHER PARTY CONCERNING THE PAYMENTS MADE BY THE LOS ALAMOS CONSTRUCTORS, INC., DURING THE PERIOD FROM APRIL 14, 1958, TO FEBRUARY 29, 1960 TO THE IRONWORKERS FOR OVERTIME WORK PERFORMED.'

DURING THE PERIOD FROM APRIL 14, 1958, TO FEBRUARY 29, 1960, APPROXIMATELY $13,000 IS REPORTED TO HAVE BEEN PAID TO IRONWORKERS IN OVERTIME PAY. YOUR AGENCY IS OF THE OPINION THAT A REFORMATION OF THE CONTRACT TO SPECIFICALLY AUTHORIZE DOUBLE TIME TO PAY TO IRONWORKERS FOR OVERTIME DURING THE PERIOD IN QUESTION WOULD PROPERLY CARRY OUT THE INTENTION OF THE PARTIES.

FROM THE FACTS SUBMITTED IT IS EVIDENT THAT THE OMISSION OF AUTHORIZATION TO PAY DOUBLE TIME TO IRONWORKERS FOR THE PERIOD IN QUESTION WAS DUE TO MUTUAL MISTAKE. ACCORDINGLY, YOU ARE ADVISED THAT WE SEE NO OBJECTION TO THE EXECUTION OF A PROPER AMENDMENT TO CONFORM THE CONTRACT TO THE ACTUAL INTENTION OF THE PARTIES. SEE B-129071, OCTOBER 10, 1956.