30 A.3d 616
Pa. Commw. Ct.2011Background
- Bockelman and Delliquadri challenged the Board’s denial of their grievances demanding prevailing minimum wages for truck drivers on a public Turnpike reconstruction project.
- Phase I and Phase II of the project involved a general contractor subcontracting to a materials supplier chain, with Grievants performing 'material hauling work' for the project.
- Drivers hauled materials within the project site and between the site and a dump/borrow pit located adjacent to the turnpike, accessed via gates and temporary barriers.
- The project contract labeled the dump pit as an off-site disposal facility, while the Bureau determined drivers performed services directly upon the public work project.
- The Board relied on federal Davis-Bacon Act interpretations and 29 C.F.R. § 5.2(l) to redefine the site of the work, including adjacent and nearly exclusive facilities like batch plants and pits.
- The Pennsylvania Court of Common Pleas appellate panel affirmed the Board, holding that Grievants were not exempt as material suppliers and that their drivers performed work directly upon the public work project.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether drivers performed services directly on the public work project | Bockelman/Delliquadri argued drivers were not direct-site workers. | Board found drivers performed work directly upon the project due to proximity and use of the dump pit. | Yes; drivers performed work directly upon the public work project. |
| Whether Grievants qualify as material suppliers exempt from the Act | Grievants contended they were material suppliers not performing on-site services. | Board rejected the exemption, finding hauling within the project site and to the adjacent pit did not make drivers exempt. | No; Grievants were not exempt as material suppliers. |
| Whether the dump/borrow pit being off-site affects coverage | Pit described as off-site disposal facility and located across borders; travel to pit did not occur on site. | Proximity and exclusive use to the project make the pit part of the site for purposes of the Act. | Yes; proximity/adaptation to project site includes the pit as part of the site. |
| Whether the Board correctly applied federal Davis-Bacon framework to interpret Section 2(7) | Davis-Bacon site concepts should not control Pennsylvania’s Act beyond on-site work. | Board correctly aligned with Davis-Bacon site interpretation to determine coverage. | Yes; Davis-Bacon interpretation is applicable and supports coverage. |
Key Cases Cited
- Borough of Schuylkill Haven v. Prevailing Wage Appeals Bd., 6 A.3d 580 (Pa.Cmwlth.2010) (broad remedial construction; Board interpretation afforded deference)
- Borough of Youngwood v. Pa. Prevailing Wage Appeals Bd., 947 A.2d 724 (Pa. 2008) (act focus protected workers on public works; not punished for misinterpretation)
- Bechtel Contractors Corp. (ARB Case No. 97-149), unreported (1998) (administrative board on-site facilities near project can be part of site)
- Midway Bechtel v. Wage Appeals Bd. (Bechtel Corp.), 932 F.2d 985 (D.C. Cir.1991) (batch plants near site may be part of the site under Davis-Bacon framework)
- Ball, Ball & Brosamer, Inc. v. Reich, 24 F.3d 1447 (D.C.Cir.1994) (borrow pits and proximity to site affect coverage under Davis-Bacon)
- L.P. Cavett Co. v. United States Department of Labor, 101 F.3d 1111 (6th Cir.1996) (distance from site influences on-site eligibility)
- Sheet Metal Workers' Int'l Ass'n v. Gene's Refrigeration, Heating & Air Conditioning, Inc., 122 Ohio St.3d 248 (Ohio 2009) ( Ohio Supreme Court on-site requirement; distinguishable from PA statute)
- Borough of Ebensburg v. Prevailing Wage Appeals Bd., 893 A.2d 181 (Pa.Cmwlth.2006) (duty to pay prev. wage not avoided by maintenance designations)
- A.R. Scalise Co. v. Pa. Prevailing Wage Appeals Bd., 393 A.2d 1306 (Pa. Cmwlth.1978) (contractual misdesign does not excuse prevailing wage obligation)