PRIME ROOFING, INC., WAB No. 78-20 (WAB Jan. 11, 1979)

USDOL/OALJ Reporter

CCASE: PRIME ROOFING DDATE: 19790111 TTEXT: ~1 [1] WAGE APPEALS BOARD UNITED STATES DEPARTMENT OF LABOR WASHINGTON, D. C. In the Matter of PRIME ROOFING, INC. WAB Case No. 78-20 Fallon, NV Dated: January 11, 1979 DECISION OF THE WAGE APPEALS BOARD This case is before the Wage Appeals Board on the petition of Prime Roofing, Inc., to review the decision of the Director of the Division of Construction Wage Determinations denying petitioner's request that an additional classification of "Extra an (Helper)" be added to the applicable wage determination for petitioner's contract to reroof and make exterior repairs on Capehart Housing units at Fallon, Nevada. The applicable wage determination for the project contained no classification or wage rates for roofer's helpers. Petitioner requested the addition of a roofer's helper classification to the wage determination upon receiving award of the contract. The wage rate proposed by Petitioner was based on the Working Agreement between the Union Roofing Contractors of Northern and Central Nevada and Local 224 of the United Slate, Tile and Composition Roofers, Damp and Waterproof Workers' Association applicable to the period in question. The Working Agreement included [1] ~2 [2] a provision recognizing the "helper" classification at 50 percent of the journeyman's rate. A further provision of the Working Agreement (Article V(A)(3)) states, in part: A Helper is a party who has not qualified and cannot qualify for training in the roofing trade under the Apprenticeship Standards for the Roofing Industry, Reno, Nevada. Helpers will not be used for applications of material covered under the agreement if Apprentice[s] or Journeymen are available. Petitioner's request was denied by the Contracting Officer on two occasions and Petitioner, through its attorney, requested the Wage and Hour Division to review the Contracting Officer's decisions. In June 1978, the Director of the Division of Construction Wage Determinations concurred with the position of the Contracting Officer in denying the requested additional classification. The present appeal to the Wage Appeals Board was taken from this final decision. The Petitioner's position is that the use of roofer's helpers in the area was a prevailing practice at the time of contract award and that the work which the helpers had performed was not the type of work which would ordinarily be performed by either journeymen or apprentice roofers. Petitioner argues that the duties actually performed by helpers on the project were exactly those defined in the agreement for helpers, i.e.: loading roofs and tearing off and cleaning up existing roofs prior to reroofing. It is also stated that no application or installation of roofing materials was done by helpers. For these reasons Petitioner argues that the roofer's [2] ~3 [3] helpers classification at 50 percent of the journeyman's rate should be permitted. The Wage and Hour Division argues that the definition of helper in the Working Agreement contains no limitation on the duties to be performed by helpers where roofers or apprentices are unavailable. Since under this definition helpers may perform roofer's duties, Wage and Hour did not find sufficient distinction between the classifications and therefore felt that it was not proper to issue a classification and rate for roofer's helpers pursuant to 29 CFR [sec] 5.5(a)(ii). Wage and Hour cites this Board's decision, In the Matter of Wage Rates for Roofers' Helpers, Ft. Richardson, Alaska (WAB Case No. 78-02, Sept. 18, 1978) in support of its position. The Wage Appeals Board considered this case in executive session on the basis of the Petition for Review and Response of Petitioner to Statement for the Wage and Hour Division filed by Petitioner, the Statement for the Wage and Hour Division filed by the Solicitor of Labor and the record provided by the Wage and Hour Division. It seems to the Board that the propriety of the decision of Wage and Hour must be considered from the same point of view from which Wage and Hour considered the request for the additional classification. The Wage and Hour Division requires contracting officers to obtain additional classifications before the work is performed for which these classes of laborers and mechanics are needed. At [3] ~4 [4] that time, the only source to which Wage and Hour could turn was the Working agreement. In this case the Working Agreement was clear that helpers at 50% of the journeyman's rate could be used for application of material if apprentices or journeymen were not available. In advance of construction of the project neither the Contracting Officer nor the Wage and Hour Division could be assured that the requested helpers would not install roofing material permitted by the agreement. The standard of the work which would be performed by the helper must be applied from the working agreement before the work was performed. It does not avail the Petitioner to claim after the project is constructed that the helpers only loaded the roof or removed existing roofing. In view of these considerations, the Petition is dismissed and the decision of the Wage and Hour Division is hereby affirmed. BY ORDER OF THE BOARD Craig Bulger, Executive Secretary Wage Appeals Board

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