HARTSFIELD ATLANTA INTERNATIONAL AIRPORT, WAB No. 77-34 (WAB Jan. 27, 1978)

USDOL/OALJ Reporter

CCASE: RATES FOR EXTENSION OF RUNWAY 10-28 NAS TAXIWAY CONSTRUCTION AT WAGE HARTSFIELD ATLANTA INTERNATIONAL AIRPORT DDATE: 19780127 TTEXT: ~1 [1] [ 77-34.WAB ] TELEGRAPHIC MESSAGE NAME OF AGENCY: U.S. DEPARTMENT OF LABOR OFFICE OF THE UNDER SECRETARY ACCOUNTING CLASSIFICATION: 8165-1-1-M-002-2330-000 DATE PREPARED: 1/27/78 NAME: CRAIG BULGER PHONE NUMBER: 523-9039 TO: ALL PERSONS ON THE ATTACHED LIST DECISION OF THE WAGE APPEALS BOARD RE: WAGE RATES FOR EXTENSION OF RUNWAY 10-28 NAS, NORFOLK, VA. WAB CASE NO. 77-32 AND REVIEW OF WAGE RATES IN WAGE DECISION NO. 77-GA-583, FOR TAXIWAY CONSTRUCTION AT HARTSFIELD ATLANTA INTERNATIONAL AIRPORT, GEORGIA WAB CASE NO. 77-34 BEFORE: ALFRED L. GANNA, CHAIRMAN, THOMAS M. PHELAN, MEMBER, AND WILLIAM T. EVANS, MEMBER A PETITION HAS BEEN PRESENTED BY THE NAVAL FACILITIES ENGINEERING COMMAND TO THE BOARD REQUESTING REVIEW OF HEAVY CONSTRUCTION WAGE RATES DETERMINED BY THE ASSISTANT ADMINISTRATOR FOR CONSTRUCTION OF A RUNWAY EXTENSION AND OVERLAY AT THE NAVAL AIR STATION, NORFOLK, VA. CONCURRENTLY, ANOTHER PETITION BY THE CITY OF ATLANTA REQUESTED REVIEW OF HEAVY RATES DETERMINED FOR CONSTRUCTION OF A TAXIWAY AT HARTSFIELD ATLANTA INTERNATIONAL AIRPORT, ATLANTA, GA. SINCE THE QUESTION PRESENTED IN [1] ~2 [2] THE TWO PETITIONS WAS SIMILAR, THE BOARD ORDERED THE CONSOLIDATION OF THE CASES PURSUANT TO SECTION 7.13, 29 CFR, PART 7[.] A HEARING ON THESE CASES WAS HELD BY THE FULL BOARD ON JANUARY 25, 1978. THE WAGE AND HOUR DIVISION STIPULATED AT THE HEARING THAT THE PRACTICE TRADITIONALLY FOLLOWED BY THE DEPARTMENT OF LABOR, WITH FEW EXCEPTIONS, HAD BEEN TO CONSIDER RUNWAY, TAXIWAY AND SIMILAR AIRPORT CONSTRUCTION OF A CHARACTER SIMILAR TO HIGHWAY CONSTRUCTION AND HAD ISSUED HIGHWAY RATES FOR THESE TYPES OF PROJECTS. THE ASSISTANT ADMINISTRATOR CONSIDERED THE WAGE APPEALS BOARD'S DECISION IN WAB CASE NO. 76-05 FOR WASHINGTON NATIONAL AIRPORT AS A GENERAL INSTRUCTION TO HENCEFORTH CONSIDER RUNWAYS AND TAXIWAYS AS HEAVY CONSTRUCTION. IT WAS ON THIS BASIS ALONE THAT THE WAGE AND HOUR DIVISION ISSUED HEAVY RATES FOR RUNWAYS AND TAXIWAYS AT NORFOLK AND ATLANTA. [2] ~3 [3] AT THE HEARING ON JANUARY 25, IT WAS APPARENT THAT WAGE AND HOUR DIVISION WAS RELYING STRONGLY ON LANGUAGE IN THE WASHINGTON NATIONAL AIRPORT CASE CONCERNING A WELL ESTABLISHED ADMINISTRATIVE PRACTICE ADOPTED AT THE START OF THE INTERSTATE HIGHWAY PROGRAM NOT TO USE HIGHWAY WAGE RATES AS A BASIS FOR NON-HIGHWAY WORK. SINCE IT WAS STATED AT THE HEARING THAT THE DEPARTMENT OF LABOR HAD CONSIDERED RUNWAYS AND TAXIWAYS AS PROJECTS OF A CHARACTER SIMILAR TO HIGHWAYS SINCE THE ESTABLISHMENT OF THE FEDERAL HIGHWAY PROGRAM AND UTILIZED WAGE RATES FROM HIGHWAYS FOR THESE PROJECTS, IT IS APPARENT THAT RUNWAYS AND TAXIWAYS HAVE NEVER BEEN CONSIDERED "NON- HIGHWAY WORK" SUBJECT TO THE SO-CALLED "WELL ESTABLISHED, PRINCIPLE." THIS BOARD DOES NOT FIND THIS INTERPRETATION A VIOLATION OF THE SPIRIT OR INTENT ACTS. THERE IS NO INDICATION THAT THE [3] ~4 [4] FEDERAL HIGHWAY ACTS WERE INTENDED TO CHANGE THIS PRACTICE AND IN FACT, THEY DID NOT CHANGE THIS PRACTICE FOR 20 YEARS. PAVING CONSTRUCTION CONSIDERED AS PROJECTS OF A CHARACTER SIMILAR FOR WAGE DETERMINATION PURPOSES INCLUDES MANY KINDS OF PROJECTS OTHER THAN THE INTERSTATE HIGHWAYS BEING BUILT BY THE STATES AND FEDERAL HIGHWAY ADMINISTRATION. THE BOARD CONSIDERS THAT THE WAGE AND HOUR DIVISION'S CONTEMPORARY CONSTRUCTION OF THE FEDERAL HIGHWAY ACTS AS NOT PRECLUDING THE CONSIDERATION OF HIGHWAY PROJECTS AS PROJECTS OF A CHARACTER SIMILAR TO AIRPORT RUNWAY AND TAXIWAY CONSTRUCTION AND THE CONTINUED APPLICATION OF THAT INTERPRETATION FOR 20 YEARS SHOULD BE GIVEN GREAT WEIGHT. THIS BOARD IS NOT AWARE OF THE FACTS IN THE WASHINGTON NATIONAL AIRPORT CASE THAT REQUIRED THE BOARD TO DETERMINE THAT RUNWAY CONSTRUCTION THERE WAS HEAVY CONSTRUCTION, BUT NO EVIDENCE [4] ~5 [5] WAS PRESENTED IN THESE CASES TO SHOW THAT THE RATIONALE OF THE WASHINGTON NATIONAL AIRPORT CASE SHOULD CHANGE A TRADITIONAL PRACTICE OF 20 YEARS OR SHOULD BE APPLIED TO OTHER AIRPORTS. IN VIEW OF THESE FINDINGS, THE WAGE AND HOUR DIVISION SHOULD RETURN TO THE LONG ESTABLISHED PRACTICE OF CONSIDERING RUNWAY AND TAXIWAY CONSTRUCTION AS PROJECTS OF A CHARACTER SIMILAR TO HIGHWAY CONSTRUCTION. IN THE INSTANT CASES THE LANGUAGE EXCLUDING AIRPORT RUNWAYS AND TAXIWAYS IS NO LONGER EFFECTIVE ON THE APPLICABLE WAGE DETERMINATIONS. FURTHERMORE, NEW DECISIONS SHOULD BE ISSUED IMMEDIATELY IN ALL WAGE DETERMINATIONS FOR HIGHWAY CONSTRUCTION WHERE THIS LANGUAGE HAS BEEN ISSUED, ELIMINATING THE EXCLUSIONARY STATEMENT. BY ORDER OF THE BOARD CRAIG BULGER, EXECUTIVE SECRETARY WAGE APPEALS BOARD [5]

UNITED STATES
DEPARTMENT OF LABOR

Office of Administrative Law Judges