UNITED STATES DEPARTMENT OF LABOR
BOARD OF ALIEN LABOR CERTIFICATION APPEALS
Judges' Benchbook
Second Edition - May 1992


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CHAPTER 18

PREVAILING WAGE

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TABLE OF CONTENTS

I. Generally

II. Matter subject to wage determination under Davis-Bacon Act or Service Contract Act

III. Matter not subject to Davis-Bacon Act or Service Contract Act

IV. General procedural and evidentiary matters

I. Generally

A. Regulatory requirement of payment of prevailing wage

Under § 656.20(c)(2), an employer is required to offer a wage that equals or exceeds the prevailing wage determined under § 656.40. Section 656.40 directs that occupations subject to the Davis-Bacon Act or the Service Contract Act have the prevailing wage determined under those Acts ( see supra Division II) and that other occupations have the prevailing wage determined by the average wage paid to workers similarly employed in the area of intended employment ( see supra Division III).

As to the posting of the prevailing wage during recruitment, see Chapter 22, III, E, 3 (Recruitment Efforts).

B. Failure to comply with wage determination or to justify lower wage

Where the employer is notified that its job offer is below the prevailing wage, but fails to either raise the wage to the prevailing wage or justify the lower wage it is offering, certification is properly denied. Editions Erebouni , 90-INA-283 (Dec. 20, 1991); Trilectron Industries, Inc. , 90-INA-188 (Dec. 19, 1991); Sumax Industries , 90-INA-502 (Dec. 4, 1991); Courtesy Caterers , 89-INA-56 (Jan. 31, 1990); General Aerospace Corp. , 88-INA-480 (Jan. 11, 1990); Ashwin L. Shaw , 88-INA-290 (Nov. 2, 1989); Care West-Garfield Nursing Center , 88-INA-483 (Oct. 26, 1989); Emil Stykiel , 88-INA-67 (Mar. 1, 1989).

C. Prevailing wage determined at date DOL issues certification

The Department of Labor's regulation at 20 C.F.R. § 656.20(c)(2) and the terms of 8 U.S.C. § 1182(a)(14) are forward-looking -- the prevailing wage is determined as of the date DOL reviews the application and issues the certification. The Immigration and Naturalization Service, on the other hand, is concerned that an employer is able to pay the wage at the time certification is first sought, since visa priority is established by that date. Masonry Masters, Inc. v. Thornburgh , 875 F.2d 898 (D.C. Cir. 1989).

D. Prior payment of alien less than the prevailing wage

The Department of Labor regulations governing payment of the prevailing wage rate are applicable to the job for which labor certification is sought. Therefore, the CO may not deny certification based upon the fact that the alien was paid less than the prevailing wage rate in prior job positions. The Kroenke Group , 90-INA-318 (July 12, 1991).

II. Matter subject to wage determination under Davis-Bacon Act or Service Contract Act

A. Regulatory provision

In determining the prevailing wage under § 656.40(a)(1), if the job opportunity is in an occupation which is subject to a wage determination under the Davis-Bacon Act, 40 U.S.C. §§ 276a et seq. , 29 C.F.R. Part 1, or the McNamara-O'Hara Service Contract Act, 41 U.S.C. §§ 351 et seq. , 29 C.F.R. Part 4, the prevailing wage is the rate required under the statutory determination. Standard Dry Wall , 88-INA-99 (May 24, 1988) ( en banc ).

B. Failure to comply with wage determination

The denial of certification will be affirmed where the employer refuses to raise the wage offered to the amount required under the Davis-Bacon Act for the same position in that locality. Anza Concrete , 90-INA-329 (Oct. 18, 1991); Polli Painting and Decorating , 88-INA-493 (Oct. 31, 1989); A.J.S. Electric , 88-INA-499 (Oct. 3, 1989).

C. Occupation, not employer determines applicability

The issue under § 656.40(a)(1) 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. Brad Bartholomay, Jr., Landscape Design and Consultation , 88-INA-332 (May 31, 1989) ( en banc ) (mason; employer involved in landscaping, not construction business); Standard Dry Wall , 88-INA-99 (May 24, 1988) ( en banc ) (journeyman, drywall hanger); Alco Electric Co. , 90-INA-433 (Dec. 11, 1991); Larry Christie, Contractor , 90-INA-135 (Apr. 29, 1991); Westco Contractors , 88-INA-529 (June 12, 1990) (non-union company; electrician); Brad Bartholomay, Jr., Landscape Design and Consultation , 88-INA-507 (Mar. 28, 1990).

D. Determination of proper category of occupation

After two panels issued conflicting decisions involving the same employer, same issue and different aliens, the Board decided to consider the cases en banc. In the first case, the panel held that the CO had improperly assessed the prevailing wage where the California wage listing set forth wage rates for commercial painters for projects in excess of $2.3 million and not for painters of residential, single-family housing. On that basis, the panel held that the CO had failed to show that he based his determination of the prevailing wage upon reasonable and reliable data. John Lehne & Son , 89-INA-313 (Dec. 12, 1990). In the second case, the panel cited Standard Dry Wall , 88-INA-99 (May 24, 1989) ( en banc ), in holding that the employer's occupation was subject to a wage determination under the Davis-Bacon Act. The second panel found that the distinction between residential and commercial painters did not indicate otherwise. John Lehne & Son , 89-INA-267 (Dec. 18, 1990). The en banc decision is pending.

E. Relevance of union contract

Under § 656.40(a)(2), wages set forth in a union contract are relevant only if the occupation does not fall within the purview of the Davis-Bacon Act. Alco Electric Co. , 90-INA-433 (Dec. 11, 1991).

III. Matter not subject to Davis-Bacon Act or Service Contract Act

A. General regulatory provisions

1. Formula for calculation of prevailing wage

Where the matter is not subject to a wage determination under the Davis-Bacon Act or the McNamara-O'Hara Service Contract Act, the prevailing wage determination is governed by § 656.40(a)(2)(i). That section provides that the prevailing wage for labor certification purposes shall be:

  • The average rate of wages, that is, the rate of wages to be determined, to the extent feasible, by adding the wage paid to workers similarly employed in the area of intended employment and dividing the total by the number of such workers . . . .

See Seibel & Stern , 90-INA-86, 116 to 129, 144 to 168 (Apr. 26, 1990).

2. Five percent cushion

Section 656.40(a)(2)(i) provides that the wage offered only needs to be within five percent of the average rate of wages.

3. Relevance of union contract

Section 656.40(a)(2)(ii) provides that if the wage rate was set in a union contract, it will be considered the prevailing wage. Compare Alco Electric Co. , 90-INA-433 (Dec. 11, 1991) (union contract wage agreement not relevant to cases in which wages are determined under Davis-Bacon or Service Contract Act).

This provision was added to the regulations as an amendment by the Secretary in response to the holding of United States Court of Appeals for the Third Circuit in Naporano Metal & Iron Co. v. Secretary of Labor , 529 F.2d 537 (3rd Cir. 1976); see 42 Fed. Reg. 3450 (1977). In Naporano Metal certification had been denied administratively because the wage offered, although paid under a collective bargaining agreement, was below the relevant "prevailing wage." The Third Circuit held that payment of a union wage negotiated to cover both alien and United States workers could not, as a matter of law, adversely affect the wages and working conditions of similarly employed American workers. Kids "R" Us , 89-INA-311, 312, 344, 90-INA-20, 75, 81, 181, 187, 216 (Jan. 28, 1991) ( en banc ).

B. Workers "similarly employed"

1. Regulatory definition

The term "similarly employed" is defined as:

  • "having substantially comparable jobs in the occupational category in the area of intended employment," except that, if no such workers are employed by employers other than the employer applicant in the area of intended employment, "similarly employed" shall mean:

  • (1) "Having jobs requiring a substantially similar level of skills within the area of intended employment"; or

  • (2) If there are no substantially comparable jobs in the area of intended employment, "having substantially comparable jobs with employers outside of the area of intended employment."

20 C.F.R. § 656.40(b)(2).

2. "Substantially comparable" test

a. Examination of totality of job opportunity

The analysis of whether jobs are "substantially comparable" for prevailing wage purposes should not focus only on job titles or duties; instead, the totality of the job opportunity must be examined. Tuskegee University , 87-INA-561 (Feb. 23, 1988) ( en banc ); Abilene Designed Heating , 89-INA-367 (Oct. 15, 1991).

b. Nature of the business or institution

The totality of the job opportunity includes a consideration of the nature of the business or institution. For example, whether the business or institution is public or private, secular or religious, profit or nonprofit, multinational corporation or individual proprietorship, are factors that must be evaluated in determining whether the job are substantially comparable. Tuskegee University , 87-INA-561 (Feb. 23, 1988) ( en banc ). Thus, salaries for associate professorships at member institutions of the United Negro College Fund (UNCF) should be compared to other UNCF schools rather than to other local schools because UNCF schools have a well-recognized, stable membership with the mission of making college-level instruction affordable to black students, and constitute a large enough membership to facilitate a broad and accurate survey of the prevailing wage for similarly employed associate professors. Talladega College , 89-INA-209 (Apr. 19, 1990).

Where a published wage survey is relied upon for a prevailing wage determination, and includes a subclassification for the employer's particular business, a CO may not use a more general classification in determining the prevailing wage. South Gate Engineering, Inc. , 89-INA-215 (June 20, 1991) (CO applied wage for welders "in all industries" rather than for welders engaged in the manufacture of durable goods).

See also Abilene Designed Heating , 89-INA-367 (Oct. 15, 1991) (distinction between electrician and electrician helper; panel considered, inter alia , that position was for a heating contractor and not an electrical contractor).

c. Nature of job

To be "substantially comparable," a prevailing wage survey should specify the wage for the specific subject of the job opportunity. Talladega College , 89-INA-209 (Apr. 19, 1990). Thus, the wage survey have to be specific to the discipline of the profession,

  • Talladega College , 89-INA-209 (Apr. 19, 1990) (although permitted to compare salaries of associate professors at other UNCF member institutions rather than other local colleges, on remand the employer was restricted to presenting prevailing wage data regarding the same discipline (mathematics), rather than for all associate professorships).

the duties and requirements of the position,

  • Abilene Designed Heating , 89-INA-367 (Oct. 15, 1991) (distinction between electrician and electrician helper; panel considered, inter alia , DOT Code, lack of need for state license).

  • Zenith Manufacturing and Chemical Corp. , 90-INA-211 (May 31, 1991) (where an employer's descrip-tion of the position of ultrasonic technician was "substantially comparable" to the job classification assigned by the CO (electronic technician), the CO's use of a wage survey for electronic technicians was appropriate).

or the permanent or temporary nature of the employment.

  • The prevailing fringe benefits of secretaries should not be considered in determining the prevailing wage of temporary secretaries, because the two groups are not "similarly employed." First Girl, Inc. v. Regional Manpower Admin., DOL , 361 F.Supp. 1339 (N.D. Ill. E.D. 1973).

C. Requirement that wage offer is proper for job described

1. Employer may not obfuscate job title to avoid paying prevailing wage

An employer must offer a wage that is proper for the job described. Thus, it may not advertise and offer a wage which is appropriate for a lesser position than the one described.

  • Arlen Real Estate Development , 88-INA-384 (Apr. 18, 1990) (where the job description and requirements showed that position was for an International Sales Manager, the employer could not advertise and offer the wage for a Real Estate Agent).

Similarly, an employer cannot change the title of a job so that the wage it is offering will appear proper.

  • Western Bagel Making Corp. , 90-INA-255 (Jan. 2, 1991) (per curiam) (employer attempted to redesignate dough-mixer operator as a helper).

A CO cannot challenge the job title for the first time in the FD. Phyllis C. Jacobson , 90-INA-228 (Sept. 3, 1991). See also Chapter 12, II, C and D (Final Determination) for detailed discussion of the requirement that the FD not be based on evidence or any issue not raised in the NOF.

2. Supervisory responsibilities

If the job includes supervisory responsibilities, the employer must offer the salary which is appropriate for a supervisor.

  • Robbins Auto Top Co. Inc. , 90-INA-29 (Nov. 30, 1990) (job duties of processing inspector were supervisory).

  • Whitehall Company , 89-INA-34 (Feb. 7, 1990) (job required supervision of four to eight employees).

D. "Area of intended employment"

1. Regulatory definition

The "area of intended employment" is:

  • the area within normal commuting distance of the place (address) of intended employment. If the place of intended employment is within a Standard Metropolitan Statistical Area (SMSA), the SMSA is deemed to be any place within normal commuting distance of intended employment.

20 C.F.R. § 656.50.

2. Definition of "Standard etropolitan Statistical Area"

The regulations do not define "Standard Metropolitan Statistical Area." One panel, however, has noted that the Appendix to the 1988 Bureau of Labor Statistics Industry Wage Survey states that, according to the U.S. Office of Management and Budget, through June 1983, an "MSA" is:

  • a county or group of contiguous counties which contain at least one central city of at least 50,000 inhabitants or a central urbanized area of at least 100,000. Counties contiguous to the one containing such a city or area are included in an MSA if, according to certain criteria, they are essentially metropolitan in character and are socially and economically integrated with the central city.

Seibel & Stern , 90-INA-86, 116 to 129, 144 to 168 (Apr. 26, 1990) (median wage for an entire region is an inappropriate prevailing wage for a starting position at a rural garment manufacturer).

3. Relevance of Occupational Outlook Handbook

The Occupational Outlook Handbook sets forth a wage based on the national average and, therefore, does not provide a prevailing wage for the "area of intended employment." Heritage Bindery , 89-INA-351 (Dec. 11, 1990) (CO's reliance on Occupational Outlook Handbook for prevailing wage information was misplaced).

4. Requirement that CO address argument that wage determination was not applicable to the area of intended employment

The Board will remand matters where the CO fails to consider the employer's argument that the prevailing wage survey used by the CO was not applicable to the "area of intended employment." Peddinghaus Corp. , 88-INA-79 (July 6, 1988).

E. Impact of state law forbidding lowering pay

Where it appears that state law forbids employers to lower the salary of a teacher who has a master's degree to the level of a teacher who has only a bachelor's degree, an employer is not required to raise its salary offer to accommodate the state pay schedule requirements for individuals who have achieved higher levels of education than the employer may need. Hamilton County Board of Education , 88-INA-95 (May 31, 1988).

F. Failure to pay prevailing wage to U.S. workers hired by the employer

Certification will be denied to employers who hire U.S. workers, but fail to pay them the prevailing wage. M. Sky Construction Co. , 89-INA-340 (Oct. 29, 1990) (employer hired two U.S. workers as welders, paid them $.50 per hour less than the prevailing wage of $12.50, and fired them on their second day).

G. Fringe benefits

1. Employer must be given opportunity to present evidence relating to fringe benefits

In prevailing wage determinations the CO should permit the employer to submit evidence of fringe benefits if it wishes to demonstrate that its hourly rate of pay is significantly enhanced by these benefits. Sections 656.40(a)(1) (occupations covered by Davis-Bacon Act) and 656.40(a)(2)(ii) (wage rates determined under union contracts) allow for the consideration of fringe benefits in prevailing wage determinations. Kids "R" Us , 89-INA-311, 312, 344, 90-INA-20, 75, 81, 181, 187, 216 (Jan. 28, 1991) ( en banc ). See also Suckno Brothers Co. , 90-INA-177 (Dec. 12, 1991) (remand for consideration under Kids "R" Us ).

Where the CO refused to consider fringe benefits in determining whether the employer was offering the prevailing wage, and the employer did not establish that the benefits were "uncommonly good," the panel remanded the case for the employer to establish the value of its fringe benefits or amend its wage to the prevailing wage determined by the CO. Koba Corp. , 91-INA-11 and 91-INA-12 (May 29, 1991).

2. Required showing by employer

Where an employer is relying on its fringe benefits in its wage offer, it bears a heavy burden to demonstrate to the CO the fairness and bona fides of its proposal. The employer must show the value of its benefits and that they are not common to the comparable jobs upon which the prevailing wage is based. Additionally, where the employer is relying on unique fringe benefits, these must be disclosed in its advertisements and postings. Kids "R" Us , 89-INA-311, 312, 344, 90-INA-20, 75, 81, 181, 187, 216 (Jan. 28, 1991) ( en banc ); Suckno Brothers Co. , 90-INA-177 (Dec. 12, 1991); Peddinghaus Corp. , 88-INA-79 (July 6, 1988).

H. Financial inability to pay prevailing wage

The requirement that a position be offered at the prevailing wage cannot be waived due to an employer's alleged financial hardship. Noberto La Rosa , 89-INA-287 (Mar. 27, 1991).

I. Wages expressed in ranges

The Board has not forbidden the use of salary ranges by employers in job offers. However, where the range dips below the established prevailing wage, the offer violates the regulations.

The employer failed to offer the prevailing wage where the determined prevailing wage was $2,916 per month and the employer offered between $2,300 and $2,950 per month. While the prevailing wage was within the range of the employer's offer, the employer's offer suggested that it might pay qualified applicants less than the prevailing wage. Sterling Management Systems , 89-INA-216 (Mar. 18, 1991).

IV. General procedural and evidentiary matters

A. Employer's burden of proof

When challenging a CO's prevailing wage determination, an employer 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 ); Sun Valley Co. , 90-INA-391 (Jan. 6, 1992) (prevailing overtime wage rate); Tse Yu Chun, M.D. , 90-INA-413 (Nov. 19, 1991) (labor certification denied where the employer challenged the CO's occupational classification but failed to submit its own wage survey as requested by the CO).

As to the employer's burden when attempting to establish that fringe benefits should be considered in its wage offer, supra Division III, G, 2.

B. CO's obligation to provide employer with notice of rebuttal burden

Where a CO instructs an employer to submit contervailing evidence that the prevailing wage determination is in error, and does not instruct the employer to establish that its wage offer is within the correct prevailing wage, the CO has provided inadequate notice of the employer's burden of proof in rebuttal. PPX Enterprises, Inc. , 88-INA-25 (May 31, 1989) ( en banc ); Seibel & Stern , 90-INA-86, 116 to 129, 144 to 168 (Apr. 26, 1990) (panel remanded forty consolidated matters for a redetermination of the prevailing wage where the employer had established the inappropriateness of a wage survey relied upon by the CO, but had not been informed of its burden to establish the correct prevailing wage).

It is harmless error, however, for the CO to fail to apprise the employer of its burden to establish that its wage offer was the correct prevailing wage where the employer is aware of its burden to submit evidence that the CO's prevailing wage was in error but fails to do so. Midtown Manufacturing Corp. , 90-INA-402 (Jan. 9, 1992).

C. CO's obligations when wage determination is challenged

1. Obligation to give due consideration to employer's wage survey

If an employer offers its own wage survey, the CO must give it due consideration. Where an employer provides credible evidence of wages paid in positions similar to the petitioned one, the CO's crediting of the State wage survey is cursory or inaccurate, and the record does not contain any evidence of the State survey, the CO's denial of certification may be reversed.

  • Pal-Mil Enterprises , 89-INA-251 (Mar. 29, 1991) (case remanded for updating the wage calculation and appropriate recruitment); Asian Americans for Community Involvement , 88-INA-481 (Jan. 31, 1990).

Or, a matter may be remanded for the CO to consider the employer's wage survey, and to provide a reasonable

explanation of how the prevailing wage was determined and why it is appropriate under the circumstances of the case.

  • PPX Enterprises, Inc. , 88-INA-25 (May 31, 1989) ( en banc ); P-W Western, Inc. , 90-INA-112 (Apr. 30, 1991).

The panel remanded a case where the CO failed to consider the employer's independent wage survey. Chuck Rogers Office Equip. Co ., 91-INA-230 (June 25, 1992). See also Helane Feis , 91-INA-366 (Apr. 28, 1993).

2. Obligation to explain determination and assure that supporting data is reliable

When an employer challenges a CO's prevailing wage determination, the CO must provide a reasonable explanation of how the prevailing wage was determined and why it is appropriate under the circumstances, and should assure that any supporting data is reliable and reflects conditions contemporaneous with the recruitment period. Tuskegee University , 87-INA-561 (Feb. 23, 1988) ( en banc ). If a CO fails to explain why he relied on the state agency's wage survey rather than the employer's, the CO's denial of certification may be vacated. See Las Cazuelas Nuevas , 87-INA-646 (Dec. 29, 1988).

In Leaf, Inc. , 90-INA-427 (Dec. 11, 1991), the panel remanded the case for redetermination of the prevailing wage rate where the CO failed to provide a reasonable explanation of the basis of the prevailing wage determi-nation despite the employer's request for such information.

See also Seibel & Stern , 90-INA-86, 116 to 129, 144 to 168 (Apr. 26, 1990) (matters remanded because employer was not given adequate notice of its rebuttal burden; CO instructed that, if she concluded on remand that the employer's prevailing wage proffer is incorrect, she must state her reasons for rejecting that proffer, make her own prevailing wage determination using an appropriate method for the job offer, and provide the employer with the opportunity to comply with her prevailing wage determination).

D. Impact of local employment service's determination

Certifying Officers are not bound by a local job service's statements or actions. Therefore, even if a local job service does not find that an employer's offered salary is below the prevailing wage, the CO can so find. Aeronautical Marketing Corp. , 88-INA-143 (Aug. 4, 1988).

E. Extension of time to complete wage survey

If the sole ground for denial of labor certification is a prevailing wage dispute, and the employer specifically requests additional time to comply to complete its own wage survey, it may be an abuse of discretion for the CO to refuse to grant the extension.

  • See Polyclad Laminates, Inc. , 90-INA-94 (Mar. 26, 1991) (panel admitted that the employer's request was cryptic and that the question was close).

  • But see Commercial Graphics, Inc. , 90-INA-114 (July 15, 1991) (after several extensions, CO warned employer that a further extension would not be granted short of extenuating circum-stances; employer requested another extension merely stating that it needed more time).

One panel has indicated that a reasonable request for an extension of time to complete an independent wage survey should be granted, even if the CO alleges that the wage should be determined under a Davis-Bacon Act covered occupation. Gutter Co. , 90-INA-71 (Mar. 27, 1991). Because a wage survey by the employer is not relevant if the occupation is subject to a Davis-Bacon wage determination ( see infra Division V, B, 3), it is not clear whether a CO would be required to grant an extension if the employer did not question whether the occupation is covered by the Davis-Bacon Act.

F. Employer's offer to readvertise

1. Offer to readvertise if rebuttal is not accepted

An employer whose rebuttal challenges the CO's wage determination, but does not indicate that the employer is willing to readvertise at that wage if the challenge is unsuccessful, is not entitled to an automatic remand for readvertisement if the CO upholds the wage determination. Richard Clarke Associates , 90-INA-180 (June 6, 1991) (although employer did not offer to readvertise in its rebuttal, panel remanded for readvertisement on other grounds) (en banc review pending).

2. Offer first made in motion for reconsideration

If an offer to readvertise under the correct prevailing wage first appears in the motion for reconsideration, it is not an abuse of discretion for the CO to consider the offer to be untimely rebuttal and refuse to reopen the matter. Yuma Construction Co. , 89-INA-341 (May 3, 1990). In Yuma , the employer's rebuttal was not responsive to the CO's finding that the wage offered in a recruitment poster was below the prevailing wage, and the employer's offer after the FD to repost the job at the prevailing wage was considered by the CO to be untimely rebuttal.

However, when an employer makes a good faith effort to clarify its position in its request for reconsideration, the CO must show that she thoughtfully considered the request, rather than summarily dismissing it. Further, when the employer also offers to acquiesce to the CO's position if the clarification is not accepted, the CO cannot meet the offer with silence but must state reasons for refusing it. Richard Clarke Associates , 90-INA-180 (June 6, 1991) (en banc review pending).

3. Offer to readvertise repeated in motion to reopen after original offer made in rebuttal

If, however, an employer offers to readvertise at the prevailing wage in a motion to reopen, after expressing a willingness to readvertise in its rebuttal if its other rebuttal arguments failed, then the CO may be required to allow readvertisement. K.E. Curtis Construction Co., Inc. , 89-INA-48 (May 2, 1990). In K.E. Curtis , the CO's NOF indicated that the employer had not offered the prevailing wage determined under the Davis-Bacon Act. In rebuttal, the employer argued that it was not subject to the Davis-Bacon Act, but indicated that it would comply with the NOF if the CO rejected that argument. The CO issued a FD denying certification, after which the employer timely moved to re-open the case and offered to comply with the wage required by the Davis-Bacon Act and readvertise with a corrected job description. The CO never ruled on the motion to re-open. On these facts, the panel remanded the case to the CO with directions that if the CO found that the employer complied with the order to offer the prevailing wage, the CO must direct the employer to proceed with new recruitment efforts.

V. Persuasiveness of evidence

A. Persuasiveness of CO's survey basis

1. Use of median wage for region

The CO improperly used a figure from the 1988 Bureau of Labor Statistics ("BLS") Industry Wage Survey for the iddle Atlantic States to determine the prevailing wage for a starting position as a sewing machine operator at a rural garment manufacturer. Use of the figure was improper because (1) the figure represented a median wage for all sewing machine operators regardless of the level of seniority or supervisory responsibility, (2) the entire Mid-Atlantic region is larger than the area of intended employment, and (3) the BLS survey did not appear to be designed to reflect wages for a rural location within the region. Seibel & Stern , 90-INA-86, 116 to 129, 144 to 168 (Apr. 26, 1990).

B. Persuasiveness of alternative survey

1. Requirement that survey be relevant, accurate and documented

An employer who challenges a CO's prevailing wage determination must state a basis for believing that its own wage represents the actual prevailing wage. Altra Filter, Inc. , 90-INA-15 (Dec. 7, 1990). Typically, employers attempt to support their wage offers by conducting independent wage surveys. Where an employer challenges a CO's prevailing wage determination with its own wage survey, that survey must be relevant and accurate. F.L. Tarantino & Sons Quakertown Memorials , 90-INA-231 (June 13, 1991); Sumax Industries , 90-INA-502 (Dec. 4, 1991). An employer will not successfully challenge the CO's prevailing wage determination by relying on an independent survey which is "too narrow" or provides "insufficient" information. Zenith Manufacturing and Chemical Corp. , 90-INA-211 (May 31, 1991).

An employer should provide sufficient background information about its survey to allow a test of the adequacy of the sample. Zenith Manufacturing , supra . Thus, an alternative survey must be adequately documented. For example, a survey which relies on salaries paid by competitors, but does not provide documentation by the competitors, may not be persuasive. Crest Aviation, Inc. , 88-INA-365 (June 23, 1989). What constitutes a persuasive survey depends on many factors. Thus:

  • A survey of wages paid in three states other than the one where the job is located is not relevant. See Wirtz Manufacturing Co. , 88-INA-63 (Jan. 13, 1989).

  • A survey of salaries for jobs which are not comparable to the job advertised is flawed. See Crest Aviation, Inc. , supra .

  • A survey of only one company is not sufficient to refute the survey used by DOL. Robbins Auto Top Co. Inc. , 90-INA-29 (Nov. 30, 1990) (letter from competitor who states that its employees who work in a specific department and earn a certain wage does not constitute a reliable or accurate survey for the position of processing inspector).

In contrast, in Pal-Mil Enterprises , 89-INA-251 (Mar. 29, 1991), the CO erred in rejecting the employer's wage survey where the employer had submitted credible evidence of wages paid in the local area for persons in the same position performing similar duties at restaurants of the same type and size.

C. Wage offer not within employer's survey

When an employer challenges a prevailing wage determination, but its own wage survey does not establish that the wage offered is within five percent of the prevailing rate, certification may be denied based on the employer's own survey. Nastrix Corp. , 90-INA-429 (Nov. 27, 1991); Employer's Casualty Company , 90-INA-77 (Apr. 29, 1991) (CO's failure to disclose the names of employers participating in the government survey was held to be harmless error).

D. Relevance of wage survey where occupation is subject to Davis-Bacon Act

A wage survey by the employer not relevant if the occupation is subject to a Davis-Bacon wage determination. Andros Floor Coverings , 90-INA-6 (Oct. 23, 1990), citing Polli Painting and Decorating , 88-INA-493 (Oct. 31, 1989) and A.J.S. Electric , 88-INA-499 (Oct. 3, 1989).

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