PWCA and National Association of Prevailing Wage Contractors v. Secretary of Labor (agency decision, June 24, 2019)

Plain-English summary

PWCA and the National Association of Prevailing Wage Contractors sponsored supplemental unemployment-benefit plans for employers subject to Davis-Bacon prevailing-wage requirements. They challenged 2015 Wage and Hour Division rulings requiring participating employers to annualize plan contributions. After the Board requested supplemental briefing, the Administrator asked for a remand to reconsider whether those rulings should remain in effect. The Board granted that request without deciding the annualization question. It denied a related extension request as moot and dismissed both appeals without prejudice.

Decision snapshot

• Cited authority: 40 U.S.C. §§ 3141-3148
• Outcome: Administrator's remand motion granted; extension motion denied as moot; appeals dismissed without prejudice.
• Key point: The Wage and Hour Division was allowed to reconsider its own annualization rulings before the Board resolved the merits.

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:


  PWCA (formerly PREVAILING WAGE                        ARB CASE NOS. 2016-0019
  CONTRACTORS’ ASSOCIATION, Inc.)                                     2016-0021


        and                                             DATE:   June 24, 2019

  NATIONAL ASSOCIATION OF
  PREVAILING WAGE CONTRACTORS
  (NAPWC),

                  PETITIONERS,

      v.

  SECRETARY OF LABOR,

                  RESPONDENT,

  INDIANA-ILLINOIS-IOWA FOUNDATION FOR
  FAIR CONTRACTING (III FFC),

                  INTERVENOR.

  Appearances:

  For the Petitioner PWCA (formerly Prevailing Wage Contractors
  Association, Inc.):
       Martha L. Hutzelman, Esq.; Law Office of Martha L. Hutzelman; New
       Albany, Ohio; and Maurice Baskin, Esq.; Littler Mendelson, PC;
       Washington, District of Columbia

  For the Petitioner National Association of Prevailing Wage Contractors
  (NAPWC):
       Richard M. Freeman, Esq.; Sheppard, Mullin, Richter & Hampton
       LLP; San Diego, California




  For the Respondent Administrator, Wage and Hour Division:
        Kate S. O’Scannlain, Esq.; Jennifer S. Brand, Esq.; Jonathan T.
        Rees, Esq.; Quinn Philbin, Esq.; and Mary E. McDonald, Esq.;
        United States Department of Labor; Washington, District of
        Columbia

  For Intervenor Indiana-Illinois-Iowa Foundation for Fair Contracting (III
  FFC):
        Keith R. Bolek, Esq.; Lance Geren, Esq.; and Jacob N. Szewczyk, Esq.;
        O’Donoghue & O’Donoghue, LLP; Washington, District of Columbia;
        and Melissa L. Binetti, Esq.; Marc R. Poulos, Esq.; and Kara M.
        Principe, Esq.; Indiana- Illinois-Iowa Foundation for Fair
        Contracting; Countryside, Illinois

  For Amicus Curiae North America’s Building Trades Unions (NABTU):
       Terry R. Yellig, Esq.; and Esmeralda Aguilar, Esq.; Sherman Dunn,
       P.C.; Washington, District of Columbia

  For Amicus Curiae United Steelworkers:
       Benjamin Eisner, Esq.; and Yael Kalman, Esq.; Spear Wilderman,
       P.C.; Philadelphia, Pennsylvania


        ORDER GRANTING ADMINISTRATOR’S MOTION TO REMAND

         This matter arises under the Davis-Bacon Act, as amended, 40 U.S.C.
  §§ 3141-3148 (2006) (DBA or the Act) and its implementing regulations at 29 C.F.R.
  Parts 1, 5, 6 and 7 (2018). Petitioners PWCA and the National Association of
  Prevailing Wage Contractors sponsor plans that offer a supplemental
  unemployment benefit (“SUB”) to participating employers. Petitioners challenge the
  October 22, 2015, final rulings of the Administrator, Wage and Hour Division (the
  Administrator) that participating employers in their SUB plans must annualize
  contributions to the SUBs to satisfy the DBA’s prevailing wage requirements.

         On March 14, 2019, the Board issued an Order for Supplemental Briefing,
  inviting the Administrator to address two questions. The Administrator has
  submitted the “Administrator’s Motion to Remand to the Wage and Hour Division
  and Response to Supplemental Briefing Order” (May 23, 2019). The Administrator
  requests that this case be remanded to the Administrator to determine whether the
  October 22, 2015, rulings should remain in effect. Motion at 2, 5-9. Alternatively,
  the Administrator requests a stay of the current proceedings pending her review of



  the October 22, 2015, rulings. Motion at 9-10, 20-21. The Administrator further
  provides “a brief response” to the questions the Board posed in its Order for
  Supplemental Briefing. Motion at 10-20.

         The Intervener, the Indiana-Illinois-Iowa Foundation for Fair Contracting
  (III FFC), and the North America’s Building Trades Unions (NABTU), as amicus
  curiae, filed a joint motion for an extension of time to respond to the Administrator’s
  motion and the Board’s order. Petitioner PWCA filed an objection to their joint
  request for an extension of time to respond to the Administrator’s motion.
  Subsequently, without the Board acting on their joint motion for an extension of
  time or granting them leave to do so, the Intervener, III FFC, and the NABTU, as
  amicus curiae, have filed an untimely response to the Administrator’s motion and
  the Board’s order.

        Upon review of the Administrator’s motion to remand, we GRANT the
  Administrator’s motion and REMAND this case to the Administrator to determine
  whether the Administrator’s October 22, 2015, rulings should remain in effect. We
  DENY the joint motion for an extension of time to respond to the Administrator’s
  motion as it is rendered moot by this remand. Thus, we DISMISS the above-
  captioned appeals without prejudice.


         SO ORDERED.



  FOR THE ADMINISTRATIVE REVIEW BOARD:


  WILLIAM T. BARTO
  Chief Administrative Appeals Judge



  Note: Questions regarding any case pending before the Board should be directed to
  the Board’s staff at (202) 693-6200 or by facsimile at (202) 693-6220.