(b) A contractor or subcontractor may discharge his obligations for the payment of the basic hourly rates and the fringe benefits where both are contained in a wage determination applicable to his laborers or mechanics in the following ways:

(1) By paying not less than the basic hourly rate to the laborers or mechanics and by making the contributions for the fringe benefits in the wage determinations, as specified therein. For example, in the illustration contained in paragraph (c) of § 5.30, the obligations for "painters" will be met by the payment of a straight time hourly rate of not less than $3.90 and by contributing not less than at the rate of 15 cents an hour for health and welfare benefits, 10 cents an hour for pensions, and 20 cents an hour for vacations; or

(2) By paying not less than the basic hourly rate to the laborers or mechanics and by making contributions for "bona fide" fringe benefits in a total amount not less than the total of the fringe benefits required by the wage determination. For example, the obligations for "painters" in the illustration in paragraph (c) of § 5.30 will be met by the payment of a straight time hourly rate of not less than $3.90 and by contributions of not less than a total of 45 cents an hour for "bona fide" fringe benefits; or

(3) By paying in cash directly to laborers or mechanics for the basic hourly rate and by making an additional cash payment in lieu of the required benefits. For example, where an employer does not make payments or incur costs for fringe benefits, he would meet his obligations for "painters" in the illustration in paragraph (c) of § 5.30, by paying directly to the painters a straight time hourly rate of not less than $4.35 ($3.90 basic hourly rate plus 45 cents for fringe benefits); or

(4) As stated in paragraph (a) of this section, the contractor or subcontractor may discharge his minimum wage obligations for the payment of straight time wages and fringe benefits by a combination of the methods illustrated in subparagraphs (1) thru (3) of this paragraph. Thus, for example, his obligations for "painters" may be met by an hourly rate, partly in cash and partly in payments or costs for fringe benefits which total not less than $4.35 ($3.90 basic hourly rate plus 45 cents for fringe benefits). The payments in such case may be $4.10 in cash and 25 cents in

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payments or costs in fringe benefits. Or, they may be $3.75 in cash and 60 cents in payments or costs for fringe benefits. [30 F.R. 13136, Oct. 15, 1965] § 5.32 Overtime payments.

(a) The act excludes amounts paid by a contractor or subcontractor for fringe benefits in the computation of overtime under the Fair Labor Standards Act, the Contract Work Hours Standards Act, and the Walsh-Healey Public Contracts Act whenever the overtime provisions of any of these statutes apply concurrently with the Davis-Bacon Act or its related prevailing wage statutes. It is clear from the legislative history that in no event can the regular or basic rate upon which premium pay for overtime is calculated under the aforementioned Federal statutes be less than the amount determined by the Secretary of Labor as the basic hourly rate (i.e. cash rate) under section 1(b) (1) of the DavisBacon Act. (See S. Rep. No. 963, p. 7.) Contributions by employees are not excluded from the regular or basic rate upon which overtime is computed under these statutes; that is, an employee's regular or basic straight-time rate is computed on his earnings before any deductions are made for the employee's contributions to fringe benefits. The contractor's contributions or costs for fringe benefits may be excluded in computing such rate so long as the exclusions do not reduce the regular or basic rate below the basic hourly rate contained in the wage determination.

(b) The legislative report notes that the phrase "contributions irrevocably made by a contractor or subcontractor to a trustee or to a third person pursuant to a fund, plan, or program" was added to the bill in Committee. This language in essence conforms to the overtime provisions of section 7(d) (4) of the Fair Labor Standards Act, as amended. The intent of the committee was to prevent any avoidance of overtime requirements under existing law. See H. Rep. No. 308, p. 5.

(c) (1) The act permits a contractor or subcontractor to pay a cash equivalent of any fringe benefits found prevailing by the Secretary of Labor. Such a cash equivalent would also be excludable in computing the regular or basic rate under the Federal overtime laws mentioned in paragraph (a). For example, the W construction contractor pays his laborers or mechanics $3.50 in cash under a wage

determination of the Secretary of Labor which requires a basic hourly rate of $3.00 and a fringe benefit contribution of 50 cents. The contractor pays the 50 cents in cash because he made no payments and incurred no costs for fringe benefits. Overtime compensation in this case would be computed on a regular or basic rate of $3.00 an hour. However, in some cases a question of fact may be presented in ascertaining whether or not a cash payment made to laborers or mechanics is actually in lieu of a fringe benefit or is simply part of their straight time cash wage. In the latter situation, the cash payment is not excludable in computing overtime compensation. Consider the examples set forth in subparagraphs (2) and (3) of this paragraph.

(2) The X construction contractor has for some time been paying $3.25 an hour to a mechanic as his basic cash wage plus 50 cents an hour as a contribution to a welfare and pension plan. The Secretary of Labor determines that a basic hourly rate of $3 an hour and a fringe benefit contribution of 50 cents are prevailing. The basic hourly rate or regular rate for overtime purposes would be $3.25, the rate actually paid as a basic cash wage for the employee of X, rather than the $3 rate determined as prevailing by the Secretary of Labor.

(3) Under the same prevailing wage determination, discussed in subparagraph 2 of this paragraph, the Y construction contractor who has been paying $3 an hour as his basic cash wage on which he has been computing overtime compensation reduces the cash wage to $2.75 an hour but computes his costs of benefits under section 1(b) (2) (B) as $1 an hour. In this example the regular or basic hourly rate would continue to be $3 an hour. See S. Rep. No. 963, p. 7.

(a) This part contains the rules of practice of the Wage Appeals Board established by Secretary of Labor's Order 32-63 (29 F.R. 188, 761). The rules implement the recommendations of the Board regarding the conduct of its proceedings.

(b) The Board has jurisdiction to decide, in its discretion, appeals concerning questions of law and fact from decisions of the Solicitor with regard to the following: (1) Wage determinations issued under the Davis-Bacon Act and its related minimum wage statutes; (2) debarment cases arising under Part 5 of this subtitle; (3) controversies concerning the payment of prevailing wage rates or proper classifications which involve significant sums of money, large groups of employees, or novel or unusual situations; and (4) recommendations of a Federal agency for appropriate adjustment of liquidated damages which are assessed under the Contract Work Hours Standards Act.

(c) In considering the matters within the scope of its jurisdiction, the Wage Appeals Board shall act as the authorized representative of the Secretary of Labor. The Board shall act as fully and finally as might the Secretary of Labor concerning such matters.

Subpart B-Review of Wage
Determinations

§ 7.2 Who may file petitions for review.

(a) Any interested person who is seeking a modification or other change in a wage determination of the Solicitor under the Davis-Bacon Act or its related acts (or related decision under § 1.3(c) of this subtitle), and who has requested the Solicitor to make such a modification or other change, may file a petition for review of the action taken by the Solicitor.

(b) For purpose of this section, the term "interested person" is considered to include, without limitation: (1) Any contractor, or an association representing a contractor, who is likely to seek or to work under a contract containing a particular wage determination, or any laborer or mechanic, or any labor organization which represents a laborer or mechanic, who is likely to be employed or to seek employment under a contract containing a particular wage determination, and (2) any Federal, State, or local agency concerned with the administration of a proposed contract or a contract containing a particular wage determination issued pursuant to the Davis-Bacon Act or any of its related statutes. § 7.3

Where to file.

The original (and four copies) of the petition shall be filed with the Wage Appeals Board, United States Department of Labor, Washington, D.C. In addition, copies of the petition shall be served personally or by mail upon each of the following: (a) The Federal, State, or local agency involved, as the case may be; (b) the Solicitor of Labor, United States Department of Labor, Washington, D.C., and (c) any other person (or the authorized representatives of such persons) known or reasonably expected to be interested in the subject matter of the petition. A signed statement of the service required by this section shall be filed with the Wage Appeals Board.

§ 7.4 When to file.

Requests for review of wage determinations should be timely made. Timeliness is dependent upon the pertinent facts and circumstances involved. Such facts and circumstances include the contract schedule of the administering agency, the nature of the work involved, its location, and any other relevant factors.

§ 7.5 Contents of petitions.

(a) A petition for the review of a wage determination shall: (1) Be in writing and signed by the petitioner or his counsel (or other authorized representative); (2) be described as a petition for review by the Wage Appeals Board; (3) identify clearly the wage determination, location of the project or projects in question, and the agency concerned; (4) state that the petitioner has requested the Solicitor to modify or otherwise change the wage determination in question, and describe briefly the action taken by the Solicitor; (5) contain a short and plain statement of the grounds for review; and (6) be accompanied by supporting data, views, or arguments.

(b) A petition shall indicate whether or not the petitioner consents to the disposition of the questions involved by a single member of the Board.

§ 7.6 Filing of wage determination record by the Solicitor.

When the Solicitor receives a copy of a petition seeking review of a wage determination, he shall forthwith file with the Wage Appeals Board the record relating to the making of the wage determination, or portion thereof in question. In his discretion or at the request of the Board, the Solicitor shall in addition file with the Board a statement setting forth his views concerning any findings challenged in the petition.

§ 7.7 Presentations of other interested

persons.

Interested persons other than the petitioner shall have a reasonable opportunity to submit to the Board written data, views, or arguments relating to the petition. Such matter should be filed with the Wage Appeals Board, United States Department of Labor,

(a) When the Wage Appeals Board in its discretion reviews a wage determination, it shall dispose of the case upon the basis of all relevant matter contained in the entire record before it. The Board shall notify all interested persons participating in the proceeding of its decision.

(b) The Board may decline review of any case whenever in its judgment a review would be inappropriate or because of lack of timeliness, the nature of the relief sought, or other reasons. Subpart C-Review of Other Proceedings and Related Matters

§ 7.9 Review of debarment and liquidated damages proceedings.

(a) In any proceedings held under § 5.6(c), 5.6(d), or 5.8(b), of this subtitle for review of debarment (including removal from debarment) cases and liquidated damages cases, any party may file with the Wage Appeals Board, within a reasonable time after the decision by the Solicitor, a petition for review.

(b) The petition shall state concisely the points relied upon, and shall be accompanied by a statement setting forth supporting reasons. Further, the petition shall indicate whether or not the petitioner consents to the disposition of the questions involved by a single member.

(c) A copy of the presentation shall be served personally or by mail upon the Solicitor. Upon receipt of such a copy, the Solicitor shall transmit to the Board the record of proceedings.

(d) In his discretion or at the request of the Board the Solicitor shall file with the Board an expression of his views concerning the points raised in the petition. When the Wage Appeals Board in its discretion reviews the Solicitor's decision, it shall pass upon the points raised in the petition upon the basis of the entire record before it, and shall notify the parties to the proceeding of its decision.

§ 7.10 Review of decisions of the Solicitor other than those in wage determination, debarment, or liquidated damages proceedings.

(a) The Wage Appeals Board may review in its discretion, decisions of the Solicitor relating to controversies concerning the payment of prevailing wage rates or proper classifications which involve significant sums of money, large groups of employees, or novel or unusual situations which arise under the DavisBacon Act and its related acts and the rules published in Parts 1, 3, and 5 of this subtitle, but which do not arise in proceedings reviewable under §§ 7.8 and 7.9 of this part. The procedures for such review shall be those specified in the remaining paragraphs of this section or any other appropriate procedure upon adequate notice to the interested persons or parties.

(b) Decisions of the Solicitor rendered under § 5.11 (b) of this subtitle shall be reviewable in the manner prescribed in § 7.9 of this part.

(c) Interested persons or parties may request review by the Board of any decision of the Solicitor rendered under § 5.5(a) (1) (ii) or § 5.12 of this subtitle which meets the standards prescribed in paragraph (a) of this section. The decisions of the Solicitor shall be reviewable in the manner prescribed in § 7.9 of this part, except that, in additon to the requirements therein stated, the petition for review shall set forth facts showing that the question or questions presented concern the payment of prevailing wage rates or proper classifications which involve significant sums cf money, large groups of employees, or novel or unusual situations.

Subpart D-Some General
Procedural Matters

§ 7.11 Right to counsel.

Each interested person or party shall have the right to appear in person or by or with counsel or other qualified representative in any proceeding before the Board.

Upon its own initiative or upon motion of any interested person or party, the Board may consolidate in any proceeding or concurrently consider two or more appeals which involve substantially the same persons or parties, or issues which are the same or closely related, if it finds that such consolidation or concurrent view will contribute to a proper dispatch of its business and to the ends of justice, and it will not unduly delay consideration of any such appeals.

§ 7.14 Oral proceedings.

(a) With respect to any proceeding before it, the Board may upon its own initiative or upon the request of any interested person or party direct the interested persons or parties to appear before the Board or its designee at a specified time and place in order to simplify the issues presented or to take up any other matters which may tend to expedite or otherwise facilitate the disposition of the proceeding.

(b) In its discretion, the Board, or a single presiding member, may permit oral argument in any proceeding. The Board, or the presiding member, shall prescribe the time and place for such argument.

(c) In its discretion, the Board may remand any case to the Solicitor for further proceedings.

§ 7.15 Public information.

(a) Subject to the provisions of §§ 1.15, 5.6(a)(3), and 5.6(c) (1) of this subtitle, all papers and documents made a part of the official record in the proceedings of the Board and decisions of the Board shall be made available for public inspection during usual business hours at the office of the Board in Washington, D.C.

(b) Facsimile copies of such papers, documents, and decisions shall be furnished upon request. There shall be a charge of 25 cents for each facsimile page

reproduction except for copies of materials duplicated for distribution for no charge as provided in paragraph (c). Postal fees in excess of domestic first class postal rates as are necessary for transmittal of copies will be added to the per-page fee specified unless stamps or stamped envelopes are furnished with the request.

(c) No charge need be made for furnishing: (1) Unauthenticated copies of any rules, regulations, or decisions of general import, (2) copies to agencies which will aid in the administration of the Davis-Bacon Act and related acts, (3) copies to contractor associations and labor organizations for general dissemination of the information contained therein, and (4) only occasionally unauthenticated copies of papers and documents.

(Sec. 501, 65 Stat. 290, 5 U.S.C. 140)