Associated General Contractors of Maine (Board decision, April 30, 2015)

Plain-English summary

Associated General Contractors of Maine challenged a Davis-Bacon wage determination covering laborer classifications in Cumberland County, Maine. The Wage and Hour Division denied the group's request for reconsideration and reissued the applicable determination. The Board found the agency's ruling consistent with the statute and regulations and a reasonable exercise of its discretion. It also rejected the group's claim that docketing of the pleadings violated due process. The Board affirmed the ruling without making a new wage-rate determination.

Decision snapshot

• Cited authority: Davis-Bacon Act, 40 U.S.C. § 3141 and following sections; Board review rule, 29 C.F.R. § 7.1(e).
• Outcome: Administrator's wage determination ruling affirmed.
• Key point: The Board found the agency's discretionary wage determination decision reasonable on the record presented.

Full text (DOL official public release)

U.S. Department of Labor
Administrative Review Board
200 Constitution Avenue, N.W.
Washington, D.C. 20210

In the Matter of:

Dispute concerning published wage rates by:

ASSOCIATED GENERAL CONTRACTORS
ARB CASE NO.: 13-043
OF MAINE (AGC-Maine)
DATE: April 30, 2015
With respect to wage determination ME100029, Modification 0 dated April 8, 2011, for laborer, concrete worker and laborer, demolition classifications in Cumberland County, Maine.

BEFORE: THE ADMINISTRATIVE REVIEW BOARD

Appearances:

For the Petitioner:
Scott T. Lever, Esq.; Associated Contractors of Maine, Augusta, Maine

For the Principal Deputy Administrator, Wage and Hour Division:
M. Patricia Smith, Esq.; Jennifer S. Brand, Esq.; William C. Lesser, Esq.; Jonathan T. Rees, Esq.; Quinn Philbin, Esq.; U.S. Department of Labor, Washington, District of Columbia

For Interested Party, Laborers’ International Union of North America:
Barry Hinkle, Esq.; Patricia M. Gates, Esq.; Nina Fendel, Esq.; Sharon Seindenstein, Esq.; Van Bourg, Weinberg, Roger & Rosenfel; Alameda, California

BEFORE: Paul M. Igasaki, Chief Administrative Appeals Judge; E. Cooper Brown, Deputy Chief Administrative Appeals Judge; and Joanne Royce, Administrative Appeals Judge.

USDOL/OALJ REPORTER
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FINAL DECISION AND ORDER

This case arises under the Davis-Bacon Act (DBA), as amended, 40 U.S.C.A. § 3141, et seq., (Thomson/Reuters 2015), and its implementing regulations, 29 C.F.R. Parts 1 and 7 (2014).
On March 7, 2013, AGC-Maine filed a petition with the Administrative Review Board (ARB) for review of a final written decision of the Principal Deputy Administrator of the Department of Labor’s Wage and Hour Division (Administrator). AGC-Maine originally sought reconsideration and review of general wage determination ME100029, Modification 0, dated April 8, 2011. Administrative Record Tab A. The Administrator issued a final ruling on January 2, 2013, denying AGC-Maine’s request for reconsideration and reissuing the applicable wage determination as ME120018, Modification 1, dated November 16, 2012. Administrative Record Tabs F, H. AGC-Maine appealed to the ARB.

JURISDICTION AND STANDARD OF REVIEW

The ARB has jurisdiction to decide appeals from the Administrator’s final decisions concerning DBA wage determinations. 1 DBA proceedings before the ARB are appellate in nature, and the Board will not hear matters de novo except upon a showing of extraordinary circumstances. 29 C.F.R. § 7.1(e). This general prohibition against de novo review means that the Board generally will not conduct an evidentiary hearing, call witnesses, or make credibility determinations, but will rely on the record and arguments presented by the parties. 2 We have previously stated that “in matters requiring the Administrator’s discretion, the Board generally defers to the Administrator.” 3 We assess the Administrator’s rulings to determine whether they are consistent with the DBA and its implementing regulations and are a reasonable exercise of the discretion delegated to the Administrator to implement and enforce the Act. 4

1
29 C.F.R. § 7.1(b); see also Secretary’s Order No. 2-2012 (Delegation of Authority and Assignment of Responsibility to the Administrative Review Board), 77 Fed. Reg. 69,378 (Nov. 16, 2012).
2
See, e.g., Framlau Corp. v. Dembling, 360 F. Supp. 806, 813 (E.D. Pa. 1973).
3
Road Sprinkler Fitters Local Union No. 669, ARB No. 10-123, slip op. at 6 (ARB June 20, 2012) (citing Titan IV Mobile Serv. Tower, WAB No. 89-14, slip op. at 7 (Sec’y May 10, 1991)).

4
Y-12 Nat’l Sec. Complex, ARB No. 11-083, slip op. at 5 (ARB Aug. 8, 2013); Titan IV Mobile Serv. Tower, WAB No. 89-14, slip op. at 7; see also Road Sprinkler Fitters Local Union No.
669, ARB No. 10-123, slip op. at 6 (citing Titan IV Mobile Serv. Tower, WAB No. 89-14, slip op. at 7).

USDOL/OALJ REPORTER
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DISCUSSION

On review of AGC-Maine’s petition and briefs, the parties’ briefs, and the Administrator’s final ruling, we are persuaded that the Administrator’s January 2, 2013 decision is consistent with the DBA and its implementing regulations and is a reasonable exercise of the discretion delegated to the Administrator to implement and enforce that Act. Further, we find no abridgement of AGC-Maine’s due process rights in the docketing of the pleadings and reject AGC-Maine’s contrary assertion.

Accordingly, the Administrator’s final ruling is AFFIRMED.

SO ORDERED.

JOANNE ROYCE
Administrative Appeals Judge

PAUL M. IGASAKI
Chief Administrative Appeals Judge

E. COOPER BROWN
Deputy Chief Administrative Appeals Judge

USDOL/OALJ REPORTER
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