BALCA En Banc Decision Summaries
PREVAILING WAGE

General principles

Similarly employed

DBA and SCA

NOTICE : These BALCA en decision summaries were created solely to assist BALCA staff in researching BALCA caselaw. The summaries are not part of the opinions and in no way constitute the official opinion of BALCA, the Office of Administrative Law Judges or the Department of Labor on any subject. The summaries should, under no circumstances, substitute for a party's own research into the statutory, regulatory, and case law authorities on any subject referred to therein. They are intended simply as a research tool, and are not intended as final legal authority and should not be cited or relied upon as such.

Employer's burden of proof

Prevailing wage: burden of proof: the general rule that is "[a]n employer seeking to challenge a prevailing wage determination . . . bears the burden of establishing both that the CO's determination is in error and that the employer's wage offer is at or above the correct prevailing wage.": [Editor's note: see El Rio Grande, 1998-INA-133 (Feb. 4, 2000)(en banc) at n.6 regarding the impact of GAL 2-98 on the PPX ruling.]. PPX ENTERPRISES, INC. , 1988-INA-25 (May 31, 1989) (en banc)

CO's responsibility to explain determinations and to provide notice of burden of proof

Prevailing wage: remand for further proceedings where CO did not explain why Employer's survey was insufficient to rebut EDD prevailing wage determination: Board quoted Shuk Yee Chan v. Regional Manpower Administrator, U.S. DOL , 521 F.2d 592, 595 (7th Cir. 1975), to wit: "The ''perfunctory exercise of acquiescence in the statistical compilations of the state employment service . . . ' cannot be the basis for the denial of certification." LAS CAZUELAS NUEVAS , 1987-INA-646 (Dec. 29, 1988) (en banc)

Prevailing wage: inadequate notice of employer's burden of proof: "[B]y only instructing the Employer to submit countervailing evidence that the prevailing wage determination was in error, and by not instructing that the Employer's countervailing evidence must establish that its wage offer is within the prevailing wage, the CO provided inadequate notice of the Employer's burden of proof on rebuttal." Case remanded. PPX ENTERPRISES, INC. , 1988-INA-25 (May 31, 1989) (en banc)

Equitable considerations

Prevailing wage: no exception based on equities of the case: elderly man wanted to hire his grand nephew for the position of live-in companion, but could not afford prevailing wage. EMIL SZTYKIEL , 1988-INA-67 (Mar. 1, 1989) (en banc)

Fringe Benefits

Prevailing wage: fringe benefits: the Board concludes that "the Act mandates that the Certifying Officer permit an employer to submit evidence of fringe benefits if it wishes to show that its offer of a basic hourly rate of pay is significantly enhanced by fringe benefits available to its workers at the time of hire. . . . [W]hen an Employer relies on fringe benefits in its wage offer, it bears a heavy burden to demonstrate to the Certifying Officer the fairness and bona fides of its proposal. As was stated by a panel of this Board in Peddinghaus Corp., 88-INA-79 (July 6, 1988): . . . at a minimum the Employer must establish the value of its fringe benefits and show that its fringe benefits are not common to the comparable jobs upon which the prevailing wage rate is based. Moreover, if the Employer is relying on unique fringe benefits, then these fringe benefits must be disclosed in its advertisements and posted notices." KIDS "R" US , 1989-INA-311, et al (Jan. 28, 1991) (en banc)

Sufficiency of CO's survey: true arithmetic mean

Prevailing wage: rebuttal: a CO's wage survey is not improperly skewed because one of the employers surveyed had a large percentage of employees paid at the highest rate in the survey: "We agree with the CO that the prevailing wage is the average rate paid to workers similarly employed in the area of intended employment. Section 656.40(a)(2)(I). We also agree that employers are looked at as a whole, and that to throw out wages that are high or low would not arrive at a true arithmetic mean." HUNTER HOLMES McGUIRE VETERANS AFFAIRS MEDICAL CENTER , 1994-INA-210 (Oct. 7, 1996) (en banc)

Posture of case if challenge fails

Prevailing wage: posture of case if challenge fails: "Section 656.21(e) requires a local job service office to advise an employer that refusal to raise the wage offered to the prevailing level is ground for denying the application, and that if the denial becomes final, the application will have to be refiled at the local office as a new application. The regulation contemplates that if an employer contests a prevailing wage determination but does not prevail, he will have to go back to the beginning of the process. See, also, § 656.29(a)." RICHARD CLARKE ASSOCIATES , 1990-INA-80 (May 13, 1992) (en banc)

Similarly employed: nature of employer's business: charitable organizations

Prevailing wage: meaning of the term "similarly employed": "the term 'similarly employed' does not refer to the nature of the Employer's business as such; on the contrary, it must be determined on the basis of similarity of the skills and knowledge required for the performance of the job offered." The Board also held that the lack of financial ability of a charitable non-profit institution to pay the prevailing wage was not a ground to permit an employer to pay substandard wages. [Editor's Note: Hathaway was modified by 63 Fed. Reg. 13755 (Mar. 20, 1998) and 61 Fed. Reg. 17610 (Apr. 22, 1996). In Hunter Holmes McGuire VA Medical Center, 94-INA-210 (BALCA Oct. 7, 1996)(en banc), the Board observed that the ETA's "use of notice and comment rule making to carve out an exception to the ruling of Hathaway Children's Services based on policy considerations is the appropriate method for an agency to change the language, scope, or application of a regulation."]. HATHAWAY CHILDRENS SERVICES , 1991-INA-388 (Feb. 4, 1994) (en banc)

Similarly employed: Federal pay schedule

Prevailing wage: meaning of the term "similarly employed": under the Federal pay system, a VA hospital was limited to offering a salary that is approximately 20 percent lower than the prevailing wage for anesthesiologists: the Board held that "the labor certification regulations do not provide an exception, either express or implied, for a Federal wage schedule and therefore, the logic of Hathaway Children's Services, is also applicable. . ." In the Board had held that the term "similarly employed" does not refer to the nature of the Employer's business but is based on the basis of similarity of the skills and knowledge required for the performance of the job offered. The Board also held in Hathaway that the lack of financial ability of a charitable non-profit institution to pay the prevailing wage was not a ground to permit an employer to pay substandard wages. HUNTER HOLMES McGUIRE VETERANS AFFAIRS MEDICAL CENTER , 1994-INA-210 (Oct. 7, 1996) (en banc)

Similarly employed: nature of employers being compared: historically black colleges

Prevailing wage: historically black college: "It is clear that it is not only the job titles, but the nature of the business or institution where the jobs are located -- for example, public or private, secular or religious, profit or non-profit, multi-national corporation or individual proprietor-ship -- which must be evaluated in determining whether the jobs are "substantially comparable." [Editor's note: Tuskegee was overruled in Hathaway Childrens Services , 1991-INA-388 (Feb. 4, 1994) (en banc). Hathaway in turn was modified by 63 Fed. Reg. 13755 (Mar. 20, 1998)]. TUSKEGEE UNIVERSITY , 1987-INA-561 (Feb. 23, 1988) (en banc)

Similarly employed: sufficiency of employer's survey: area of intended employment

Prevailing wage: because the regulation requires, at least in the first instance, that the prevailing wage must be based on the wages of similarly employed workers in the area of intended employment, the CO correctly rejected a survey presented by the employer that spanned several states. WIRTZ MANUFACTURING COMPANY , 1988-INA-63 (Jan. 13, 1989) (en banc)

Similarly employed: sufficiency of employer's survey: limitation to like employers

Prevailing wage: rebuttal: survey limited to other VA hospitals: "[T]he Employer's wage survey is simply the statutory rate paid to Anesthesiologists at 12 VA hospitals. We agree with the CO that this survey is inadequate because these are not 12 separate employers, but are the same employer paying the same wage." HUNTER HOLMES McGUIRE VETERANS AFFAIRS MEDICAL CENTER , 1994-INA-210 (Oct. 7, 1996) (en banc)

DBA wage determinations

Prevailing wage: SCA and DBA: Board rejected employer's argument that it was not subject to the DBA and therefore was not required to offer the DBA wage rate: " The issue is not whether the employer is subject to the provisions of the Davis-Bacon Act, but whether the occupation is subject to a wage determination under the Davis-Bacon Act." STANDARD DRY WALL , 1988-INA-99 (May 24, 1988) (en banc)

Prevailing wage: DBA wages: Employer argues that its job offer wa exempt from a Davis-Bacon wage determination because the Employer's business is landscaping, not construction: The Board reject the argument, finding that landscaping is within the ambit of the DBA regulations, and that "'[t]he issue is not whether the employer is subject to the provisions of the Davis-Bacon Act, but whether the occupation is subject to a wage determination under the Davis-Bacon Act.' Standard Dry Wall, 88-INA-99, slip op. at 3, (May 24, 1988) (en banc) (emphasis in original)": Board held that the "focus is not on the nature of the Employer's business, but rather whether the job offered, that of a mason, is an occupation subject to a Davis-Bacon wage determination. BRAD BARTHOLOMAY JR. LANDSCAPE DESIGN & CONSULTATION , 1988-INA-332 (May 31, 1989)

Prevailing wage: DBA occupation: evidentiary burdens on employer and CO: "The burden of persuasion rests with the Employer seeking to challenge the CO's prevailing wage determination. However, placement of this burden on the Employer presumes that the Employer knows the source and basis for the CO's determination. . . . It is unreasonable to require that an employer rebut a wage rate of ambiguous or unknown origin, or one which is not easily accessible. . . . Consequently, in those cases where the wage rate is in dispute, it is incumbent upon the CO to provide a copy of the relevant portions of his or her source for the prevailing wage determination with the NOF. * * * In addition, if an employer challenges the CO's Davis-Bacon wage determination in rebuttal, then the CO must provide a reasonable explanation of how the prevailing wage was determined from the Davis-Bacon schedule, and why it was appropriate under the circumstances." JOHN LEHNE & SONS , 1989-INA-267 and 313 (May 1, 1992) (en banc)

Prevailing wage: DBA occupation: employer's burden of proof: "An employer seeking to challenge a prevailing wage determination generally bears the burden of establishing both that the CO's determination is in error and that the employer's wage offer is at or above the correct prevailing wage. PPX Enterprises, Inc., 88-INA-25 (May 31, 1989) (en banc). Because the occupation of painter is covered by the Davis-Bacon schedule, the prevailing wage rate must be derived from that schedule and cannot be assessed from an independent wage survey conducted by the Employer. * * * However, the Employer is not precluded from conducting a survey which may indicate an error in the classification used by the CO in the Davis-Bacon wage assessment." JOHN LEHNE & SONS , 1989-INA-267 and 313 (May 1, 1992) (en banc)

SCA wage determinations

Prevailing wage: SCA wage determinations: standard of review: BALCA looks to thee ARB and its predecessors (the WAB, BSCA and Secretarial review decisions), and well as the federal courts for guidance on the legal principles involved in SCA wage review: those entities afford great deference to the Wage and Hour Administrator's specific methodology in making wage determinations under the SCA. EL RIO GRANDE , 1998-INA-133 (Feb. 4, 2000) (en banc)

Prevailing wage: SCA wage determinations: burdens of proof: BALCA finds that John Lehne & Sons, 1989-INA-267 and 313 (May 1, 1992)(en banc) is applicable SCA as well as DBA wage determination disputes, to wit: "[t]he burden of persuasion rests with the Employer seeking to challenge the CO's prevailing wage determination. However, placement of this burden on the Employer presumes that the Employer knows the source and basis for the CO's determination." In addition, the Board held that, where a wage determination is in dispute, a CO must "provide a copy of the relevant portions of his or her source for the prevailing wage determination with the NOF" because "[i]t is unreasonable to require that an employer rebut a wage rate of ambiguous or unknown origin, or one which is not easily accessible." In Lehne, the Board also held that "if an employer challenges the CO's Davis-Bacon wage determination in rebuttal, then the CO must provide a reasonable explanation of how the prevailing wage was determined from the Davis-Bacon schedule, and why it was appropriate under the circumstances." In regard to the employer's burden, the Board noted the general rule that "[a]n employer seeking to challenge a prevailing wage determination . . . bears the burden of establishing both that the CO's determination is in error and that the employer's wage offer is at or above the correct prevailing wage. PPX Enterprises, Inc., [19]88-INA-25 (May 31, 1989)(en banc)." The Board held that where the occupation "is covered by the Davis-Bacon schedule, the prevailing wage rate must be derived from that schedule and cannot be assessed from an independent wage survey conducted by the Employer." Nonetheless, the Board held that an employer "is not precluded from conducting a survey which may indicate an error in the classification used by the CO in the Davis-Bacon wage assessment." Finally, the Board held that, in addition to demonstrating that the CO's wage determination is in error, the Employer is required to establish that its wage offer is at or above the correct prevailing wage. EL RIO GRANDE , 1998-INA-133 (Feb. 4, 2000) (en banc)

Prevailing wage: SCA wage determinations: classification of job: BALCA is only requiring a ". . .reasonably good fit -- not necessarily a perfect fit." In the instant case, it was reasonable for the CO to have classified a cook specializing in foreign foods to the SCA Cook II definition. EL RIO GRANDE , 1998-INA-133 (Feb. 4, 2000) (en banc)

Prevailing wage: SCA wage determinations: slotting: " Slotting is provided for in 29 CFR § 4.51(c) as a means of arriving at a salary when there is insufficient data to make an accurate wage determination for those workers. The process of slotting involves examining data from related occupations with a comparable skill level to arrive at a wage for the occupation for which the data is insufficient." "[W]here slotting is used for a SCA wage determination, and Employer challenges the SCA wage determination, the CO must provide information on why slotting was used, which positions were compared, and why the comparison was reasonable. Once the CO does so, however, the ultimate burden of proof remains on an employer challenging a SCA prevailing wage determination to establish that the CO's wage determination is in error, and that it its wage offer is at or above the correct prevailing wage." EL RIO GRANDE , 1998-INA-133 (Feb. 4, 2000) (en banc)

Prevailing wage: SCA wage determinations: use of slotting: Board holds that it does not find the "slotting procedure to be inconsistent with the statutory purpose of protecting the wages and working conditions of U.S. workers similarly employed. By its own terms, section 4.51 (c) requires "a comparison of equivalent or similar job duty and skill characteristics between the classifications studied ...." EL RIO GRANDE , 1998-INA-133 (July 28, 2000) (recon en banc)

Scope of BALCA review: BALCA has jurisdiction to review SCA wage determinations made in the context of applications for alien labor certification under 20 C.F.R. Part 656. EL RIO GRANDE , 1998-INA-133 (Feb. 4, 2000) (en banc)