IBEW v. T & H: Court Says Davis-Bacon Dispute Not Subject to Arbitration

In IBEW, Local 113 v. T & H Services, the Tenth Circuit Court of Appeals examined whether a dispute over job classifications under the Davis-Bacon Act could be resolved through arbitration under a collective bargaining agreement (CBA). The court affirmed the district court's decision that the dispute was not arbitrable, finding that such classifications are governed by federal regulations, not the CBA.

Dispute Over Wage Classification at Fort Carson

T & H Services operated under a federal contract to provide maintenance services at Fort Carson Army base. The International Brotherhood of Electrical Workers, Local 113 represented several employees under a CBA, which allowed for arbitration of grievances related to the interpretation or application of express provisions of the agreement. In 2018, union members were assigned to repair roofs damaged by weather but were paid at the general maintenance worker rate instead of the higher roofing rate.

Believing this classification to be improper under the Davis-Bacon Act, which governs wages for federally funded construction projects, the union filed a grievance and sought arbitration. T & H Services refused to arbitrate, asserting that Davis-Bacon job classifications are determined by federal authorities, not through collective bargaining. The union filed suit to compel arbitration under the Federal Arbitration Act.

Court Finds Job Classifications Are Not Subject to Arbitration

The Tenth Circuit found that the CBA, when read in the context of the Davis-Bacon Act, did not provide for arbitration of disputes over federal wage classifications. The Davis-Bacon Act assigns responsibility for determining wage rates and job classifications to the U.S. Department of Labor (DOL). The court emphasized that the CBA itself acknowledged the government's authority, particularly the contracting officer's role in providing Davis-Bacon wage rates.

The court explained that Davis-Bacon classifications are established before contract award and are subject to an administrative scheme designed for consistency. The administrative process includes classification determinations by the DOL, and challenges must follow formal procedures outlined in federal regulations. Arbitration under a CBA, by contrast, could lead to inconsistent outcomes and undermine the statutory scheme.

No Right to Arbitration for Davis-Bacon Disputes

According to the court, even though the union framed the dispute as one involving application of the CBA, the essence of the grievance was a classification determination. The CBA did not contain any express provision giving the union or employer authority to determine Davis-Bacon classifications. The court declined to interpret the agreement as granting rights beyond those defined by federal law and reaffirmed the principle that arbitration must be grounded in the parties' consent as expressed in their contract.

The Tenth Circuit concluded that disputes regarding the classification of work under the Davis-Bacon Act are not arbitrable and affirmed the district court's grant of summary judgment.

Government Contracting Compliance Support

If your business is navigating wage classification or federal contracting disputes under Davis-Bacon or related statutes, our government contracting team at Whitcomb, Selinsky, PC can help you understand your obligations and options for resolution.