STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
ASSOCIATED BUILDERS AND )
CONTRACTORS, INC., )
)
Petitioner, )
)
vs. ) CASE NO. 80-2146
) FLORIDA DEPARTMENT OF LABOR ) AND EMPLOYMENT SECURITY, )
)
Respondent, )
and )
) THE FLORIDA BUILDING TRADES ) COUNCIL, et. al., )
)
Intervenors. )
)
RECOMMENDED ORDER
Pursuant to notice, this cause came on for administrative hearing before P. Michael Ruff, duly designated Hearing Officer of the Division of Administrative Hearings, on July 13, 14 and 15, 1981; November 30, 1981; and December 1 and 7,
1981.
APPEARANCES
For Petitioner: William R. Radford, Esquire
1600 Southeast First National Bank Building Miami, Florida 33131
and
James W. Linn, Esquire
Lewis State Bank Building, Suite 600 Post Office Box 1528
Tallahassee, Florida 32302
For Respondent: Kenneth Hart, Esquire
Montgomery Building
2562 Executive Center Circle, East Tallahassee, Florida 32301
For Intervenor: Steven Malone, Esquire
1215 Thomasville Road
Tallahassee, Florida 32303
This proceeding was initiated by the Petitioner's application for approval of an amendment to its previously approved apprenticeship program standards. It seeks to provide for an apprenticeship program for the occupation of metal building assembler.
On March 26, 1980, Petitioner applied to the Respondent, Florida Department of Labor and Employment Security, Bureau of Apprenticeship, for approval of its proposed statewide metal building assembler apprenticeship program. That application was denied on October 23, 1980. Pursuant to the Respondent's request, and after a number of attempts to conduct a hearing, an evidentiary hearing was begun on July 13, 1981. The final day of hearing was December 7, 1981. The Petitioner presented 17 witnesses and 54 exhibits. All Petitioner's exhibits except Exhibits 22, 23, 26, 31, 47 and 50, were admitted into evidence. Respondent presented 3 witnesses and its 3 exhibits were received. The Intervenors presented 7 witnesses and 29 exhibits, all of which were received in evidence.
At the conclusion of the hearing, the parties requested a transcript of the proceedings and an extended briefing period was granted. After a number of extensions, proposed findings of fact, conclusions of law, briefs and supplemental memoranda were filed in a timely fashion. Additional authority was filed by the Petitioner and served on opposing counsel without objection on August 18, 1982. In conjunction with the extensions of time granted, the parties waived the requirements of Rule 28-5.402, Florida Administrative Code.
The issues to be determined in this proceeding involve whether the trade of "metal building assembler" is an apprenticeable occupation and whether a concomitment metal building assembler apprenticeship program may be approved by the Department of Labor.
FINDINGS OF FACT
The Petitioner is an incorporated trade association whose membership consists chiefly of licensed builders and contractors. The Respondent Department of Labor and Employment Security is an agency of the State of Florida charged with regulating and enforcing labor standards, practices and rules throughout Florida's industrial economy as charged by the legislature in Chapter 446, Florida Statutes, as well as in rules pertinent thereto.
The Intervenors, Florida Building Trades Council, Ironworker's Local
402 and Dean Wells are, respectively, an association of Labor Union members involved in building trades, a local group of members in the Ironworkers' Union, as well as Dean Wells, an individual member of the Ironworkers' Union, Local No. 402, located in Palm Beach County, Florida.
It is essential in determining the question of whether the assembler of a metal building engages in an apprenticeable occupation to examine the physical characteristics and nature of the pre-engineered metal building. It must be determined whether it requires in its erection certain skills which render the erectors or assemblers of such a building to be engaged in separate occupations from, for instance, ironworkers, carpenters, or other building trades.
Metal Building Systems
Essentially, pre-engineered metal buildings consist of an independent network of components such as foundation, primary structural frame, purlins and girts, which are secondary structural members, the sheetmetal wall and roof panels, as well as trim, accessories and sometimes insulation. The primary distinction between a metal building or metal building system and conventional construction concerns the manner in which the components interrelate to each other. Every element of a metal building depends on every other element to give the building rigidity and structural integrity. In contrast, a conventionally
constructed building utilizes load-bearing walls and heavy structural columns and beams to transfer the building's load directly downward into the foundation. Each element of a metal building thus lends support to every other element.
Primary structural members are braced by purlins and girts, which are in turn braced by the roof and wall panels. The fasteners securing the various elements to each other thus assume critical importance in the overall stability of the metal building system since each part of the building, including the metal skin, assists it in maintaining rigidity and structural integrity.
Because the pre-engineered design of metal building systems permits components to be significantly lighter than those employed in conventional construction, the proper handling, erection and installation of metal building components becomes crucial to the structural integrity and weather tightness of the finished building because of the greater fragility of metal building components.
Another major difference between these buildings and conventional construction lies in the pre-engineering itself. Engineers are not normally employed to determine exact loads which may be safely borne by conventional structures, whereas metal building systems must be pre-engineered in order to determine precisely what the loads applied to a structure or a particular part of the structure are, and how they should be resisted to ensure that design requirements are met.
As established by Dr. Elifrit, Director of Engineering and Research for the Metal Building Manufacturers Association, the standard rules of the game are different for metal building systems compared to conventional structural steel." Construction of such pre-engineered metal building systems comprise a distinct and different form of commercial construction from conventional "red iron" or heavy structural steel framed commercial buildings.
The Metal Building Industry
Since the inception of the metal building industry with the "quonset hut" during World War II, that industry has experienced substantial sales growth and technological development. Metal building systems sales have increased steadily in the past three decades from approximately twenty-five million dollars in 1947 to more then one billion dollars in 1980. Metal building sales grew at an annual rate of more than 16 percent nationwide between 1975 and 1980 and the value of in-place construction of those systems in the United States totaled approximately five billion dollars in 1980.
Such sales of metal buildings in Florida have multiplied rapidly in recent years, increasing from a level of approximately $15 million construction value in 1975 to more than $44 million in 1980. The growth in Florida has increased at an average annual rate of nearly 25 percent during those five years and in 1981, metal building sales increased nearly 50 percent over the level of 1980. As demonstrated by Petitioner's Exhibit 54, a series of photographs portraying 80 metal buildings observed on a direct route from the Tallahassee airport to downtown Tallahassee, the use of metal buildings has burgeoned in the last ten years. It was established that during 1980 metal building construction represented approximately 7.2 percent of all nonresidential construction in Florida and that Florida now ranks seventh in volume of metal building sales for the entire nation, with Florida sales representing approximately 5 percent of sales throughout the United States in that year.
The Petitioner's uncontroverted testimony establishes that it requires approximately 300 man hours to build an average "50 x 100" metal building. Petitioner's expert, Mr. Ketenbrink, described in detail the process used for estimating metal building erection labor costs. Based upon his records, Mr. Ketenbrink stated that metal building assemblers he employs produce approximately 11.75 square feet of metal building erection per hour, Witness Herkert, a metal building contractor, established that the cost per square foot of a typical 50 x 100 rectangular metal building erected in Florida would range from $2.75 to $3.04 per square foot. Utilizing these figures, the amount of work for metal building assemblers in Florida during 1980 was shown to be in excess of 600 man-years. Put another way, work exists for at least 600 full- time metal building assemblers in Florida based upon 1980 figures.
Metal building construction has achieved substantial popularity for commercial construction in Florida so that in 1980, pre-engineered metal buildings made up 47 percent of all commercial, institutional and industrial buildings of two stories or less and 150,000 square feet or less. Metal building systems are less expensive to erect in terms of material and labor and their rapid erection time substantially reduces field labor costs and short-term construction loan interest payments. Coated steel panels and better grades of paint make metal buildings less costly to maintain over the useful life of the building. All these factors have contributed substantially to the popularity of metal buildings for the smaller types of commercial construction.
Metal building system manufacturers have devoted considerable resources to research and development, which have resulted in many technological advances in the design and construction of metal buildings, as well as erection techniques. These innovations involve computer designing, pre-coated metal coils, factory insulated wall and roof panels, standing-seam roof systems and under-purlin insulation. These innovations have contributed to the growing acceptance of metal buildings as an alternative to conventionally constructed commercial buildings. Metal buildings were shown to be as energy efficient and less costly to insulate than conventional structures. Metal buildings are distributed to a substantial number of franchise dealer/erectors throughout Florida. The telephone directory yellow pages (Exhibit 49) of four major metropolitan areas in Florida reveal more than 100 distributors and erectors of metal buildings produced by various manufacturers.
Erection of a Metal Building System
The erection or assembly of a metal building begins when the concrete slab upon which the building rests is completed. The duties of a metal building assembler begin when the slab is completed and the anchor bolts for attaching the structural columns of the building have been emplaced. The anchor bolts are first examined and measured to determine that their placement is proper. The building is next unloaded from delivery vehicles and the components are accounted for, placed and stored at appropriate locations on the job site to enhance the ease of assembly. Individual parts are fragile and sometimes bend easily compared to normal structural iron work and require special handling and rigging with cranes or lift-trucks during the off-loading and assembly process. The placement of the various parts in compatible positions for ease of assembly requires knowledge of the overall sequence of erection of the building, which varies with the type of building and the erection equipment used. A boom truck, forklift or small crane is often used to hoist metal building components into position. The protection of certain components from the elements must be taken into consideration during the "shake-out phase" prior to assembly. After the "shake-out phase," the building frame is erected. In assembling the structure
of the building there is a definite erection sequence which must be followed beginning with the erection of the so-called "braced bay." Structural members are often pre-assembled on the slab to save erection time and then lifted by a crane into place as a unit. After erection of the braced bay, the structural framework is plumbed and squared at various stages of the erection process before the succeeding erection sequence begins. The off-loading, shake-out, storage and erection of primary and secondary framing components comprise about one-third of the total erection time for a typical conventional metal building.
After all framing is completed, the side-wall panels are next affixed to the structure according to a precise sequence. The side-wall panels and fasteners vary according to the manufacturer and type of building being erected. Different fasteners require different tools for proper installation and different installation techniques.
Because light weight girts tend to sag, particular shoring techniques must be learned and used for the proper installation of girts, as well as purlins and eave struts. Prevailing wind direction and the ultimate use of the building play a role in the determination regarding the manner in which side wall panels are lapped and fastened and what type of fasteners are used.
Windows, doors and wall and roof openings require special installation skills and attention. Erection plans occasionally have to be modified to assure that openings fit properly over panel ribs and coincide with the corrugations in panels. Insulation must be installed in a manner to maintain its thermal qualities, while at the same time retain a pleasing finished appearance to the interior of the building. The installation of roof panels requires great skill and care to ensure that the roof remains weather tight. Measurements must be often made to assure that proper panel dimensions are maintained and that both sides of the roof are symmetrical. Prevailing winds, the type of roof and the type of panel-lap to be used all dictate different types of installation procedures and sequences. Fasteners must be carefully torqued to assure the integrity of the weather-sealed washers underneath them. Assemblers must learn to skillfully caulk the finished roof in order for it to be watertight. The building trim, gutters, flashing, downspouts and other accessories frequently require extensive field modification which assemblers must be trained to do, independently of architects and engineers. These items frequently present unique installation problems. In short, the complexity of the metal building erection process was clearly demonstrated through the use of demonstrative evidence (slides) as well as expert testimony of Mr. Ketenbrink and Mr. Osborne, who established that the erection of a metal building typically is at least as complex as normal, structural steel and indeed is often more so. Indeed, in the United States Department of Labor's dictionary of occupational titles, containing a complex number and rating system, the occupation of metal building assembler is rated equally as high in the use of tools and materials as is the occupation of structural steel worker (ironworker). Both occupations are rated at "1" in the category of working with "things" and Respondent's own expert, Mr. Neeley, established that to mean "precision work."
The evidence in the record-in uncontradicted, as established by Witnesses Osborne, Morrow, Poli and Edwards, to the effect that substantially all metal building erection work in Florida is performed by non-union workers. Indeed Witness Edwards, the Executive Director of the Coastal Ironworkers Subcontractors Association, established that no member company of his association which employ ironworkers to perform their jobs was engaged primarily in metal building erection. This testimony establishes that members of the
ironworkers craft in Florida, for the most part, are not engaged in metal building erection.
The testimony of Dean Wells, a union ironworker from Palm Beach County in Local #402, described the metal building erection market in that county as scant and that there was not enough of such work available to "make a living." Wells felt that there was only sufficient work for a maximum of four assemblers employed in metal building assembly year round. His testimony is contradicted, however, by the showing of the Petitioner that more than 3.5 million dollars worth of metal buildings have been shipped into Palm Beach County each year since 1979. The Petitioner's calculations establish, without contradiction, that that amount of metal building work would employ more that 48 metal building assemblers in Palm Beach County for the last three years on a full-time basis. Indeed Mr. Cunningham's company, Tri-Cities Construction, employs eight full- time metal building assemblers the year round, and by his estimate he enjoys 15 percent to 20 percent of the Palm Beach County metal building erection market. Thus, in Palm Beach County alone Tri-Cities Construction employs at least 200 percent more metal building assemblers than all the union erectors of metal buildings in Dade, Broward and Palm Beach Counties combined. Mr. Shealy testified for the Petitioner. He has more than 30 years experience in all facets of the metal building industry, including erection. He established that there is a national, as well as a Florida, shortage of qualified metal building assemblers. The shortage of skilled labor causes such problems in erection as: improper installation of four-corner laps in roofsheets; leaky roofs; inability to properly erect primary and secondary structural components; damaged and improperly installed insulation; ill-fitting doors and windows; and generally the spending of excessive time in performing erection tasks. Several metal building contractors established in the record that they had to, on occasion, discharge or send back to the union hiring hall a number of incompetent or inadequately trained workers.
Mr. Dean Wells, an ironworker of considerable experience and an instructor in an ironworker apprenticeship program, testified for the Intervenors. He only became aware of the meaning of the terms "primary and secondary structural members" during the course of the hearing itself. Although he opined that the sheeting process for assembly of metal buildings was covered in the ironworker apprenticeship program, he himself did not know how to correctly diagram a four-corner lap for metal building sheeting when requested to demonstrate it and was not aware of the design of a typical metal building roof sheet which includes a "purlin-bearing leg." He did not know such common information as the width of a typical metal building roof panel and without comment or question illustrated a supposed "three-corner lap" when the Petitioner demonstrated that there is no such connection known to the metal building erection process. Mr. Wells was unable to name any tools that are unique to the assembly of metal buildings, although the Petitioner's witnesses established that there are a number of tools used exclusively by metal building assemblers and not by ironworkers. Mr. Wells stated that the walls of a metal building are installed first in order to square the building, but the petitioner's expert, Mr. Ketenbrink, established this to be false and indeed the Intervenor's own apprenticeship program and instructional materials establish this to be false.
In short, despite that the Intervenors' repeated assertions to the contrary, the existing ironworker and structural steel worker apprenticeship programs do not, in fact, provide adequate training in metal building assembler skills. There are 18 reference manuals used in the ironworker apprenticeship program and only one specifically relates to metal building assembly. The brief
exposure given metal building assembly in the ironworker apprenticeship program was demonstrated by the program director's difficulty in remembering that the single metal building direction manual was used in the program and his inability to remember that no metal building tools are demonstrated in that manual. Mr.
Ketenbrink, the Petitioner's expert, established that although that manual provides some basic fundamental instruction, that it would be impossible to erect a metal building using that guide and that a proper training program must be much more elaborate and detailed. It is significant that none of the slide programs presented by the Intervenor Ironworkers, as Intervenor's Exhibits 23A- 26A, dealt with any aspect of roof and wall sheeting of metal buildings, nor was the installation of gutters, downspouts, trim and accessories treated. This is a significant omission in that training program since about two-thirds of the total erection time of a metal building is devoted to those items with intricate and numerous work skills required. Instruction in the ironworker apprenticeship program involving reading blueprints does not include metal building blueprints. There are not any symbols in ironworker blueprint materials which relate to blueprints of metal buildings and it was established by Mr. Compton, the director of the ironworker apprenticeship program, himself, that metal building blueprints used symbols that are different from those shown in the ironworker blueprint manual and which are not taught to the ironworkers in their apprenticeship program.
Numerous tools used in metal building assembly are not treated in the ironworker tool manual for the ironworkers apprenticeship program. A number of terms common to the metal building assembly trade are not defined in the ironworker apprenticeship materials. Such terms common in metal building assembly as: rake, rake trim flashing, eave canopy, framed openings, span, self-drilling screws, insulation, pre-engineered metal building, shipping list, roof panel, wall panel, mastic, ridge cap, ridge fence and sky-light are not defined or discussed in the ironworker apprenticeship material in evidence.
The Intervenors attempted to show that approximately six months of the ironworker apprenticeship program is devoted to metal building assembly. The totality of the testimony and evidence in the record have demonstrated, however, that that is not really the case. Very little contained in the seventeen ironworker apprenticeship manuals used in the ironworker program is relevant to erection of metal buildings. The worker processes, included as part of the ironworker program standards do not include any specific references to metal building skills themselves. Mr. Compton established that about a year of the ironworker program is devoted to reinforcing skills, and about three months to ornamental work processes. There is another 2,000 hours, or one year, for blueprint reading, which is not related to metal building blueprint reading; a 1,000 hours, or six months, for welding skills; 2,000 hours, or a year, for structural and rigging processes; and 1,000 hours, or six months, devoted to shop work. It is thus not established that another entire six months could be devoted to metal building assembler job skills within the four-year ironworker apprenticeship program.
There was shown to be simply insufficient metal building erection work available among those building contractors employing union ironworkers to provide adequate on-the-job training in metal building assembly, hence the lack of emphasis on this training in the ironworker program. Such on-the-job training, as envisioned in Section 446.092, is a crucial element in the process of teaching a trade and a necessary adjunct to related classroom or correspondence instruction.
In short, it was established that ironworkers are not well versed in many aspects of the erection of metal buildings. This is natural because their apprenticeship training program contains very little material and instruction on the erection of metal building. Since it must be assumed that the ironworkers themselves define their trade, or their ironworker craft, by the types of instruction and materials which they must train and teach to the apprentices in their program so that they may adequately learn that trade, it follows then that the almost total lack of any serious attempt to train their apprentices in metal building assembly work establishes that the construction industry in general and the ironworker's union itself does not envision the ironworker craft to include the trade or occupation of metal building assembler. It is customarily considered a different trade or occupation.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes (1981).
The essential issue which must be decided herein is whether the occupation of metal building assembler meets the statutory prerequisites for apprenticeable occupation. Chapter 446.092, Florida Statutes (1981) reads:
Criteria for apprenticeship occupations.-- An apprenticeable occupation is a skilled trade which possesses all of the following characteristics
It is customarily learned in a prac- tical way through a structured, systematic program of on-the-job supervised training.
It is commonly recognized throughout the industry, or recognized with a positive view towards changing technology, or recom- mended by the Florida Apprenticeship Council.
It involves manual, mechanical, or technical skills and knowledge which require a minimum of 2,000 hours of work and training, which hours are excluded from the time spent at related instruction.
It requires related instruction to supplement on-the-job training. Such instruc- tion may be given in a classroom or through correspondence courses.
It involves the development of skill sufficiently broad to be applicable in like occupations throughout an industry, rather than of restricted application to the products or services of any one company.
Selling, retailing, or similar occupations in the distributive field.
Managerial occupations.
Professional and scientific vocations for which entrance requirements customarily require an academic degree.
In order for an occupation to be apprenticeable it should possess the indicia of a skilled trade, including all six ennumerated criteria in the above
statutory section. The parties have stipulated that the criteria set forth in Sections 446.092(4) and (6) have already been met by the Petitioner. Section 446.092(1) requires that an apprenticeable occupation be one which is customarily learned in a practical way through a structured systematic program of on-the-job training. The Petitioner has demonstrated that, while in the overall erection process an assembler must have considerable technical classroom acquired knowledge, the metal building assembler can only learn the full range of his skills and only sufficiently improve those skills by performing on-the- job work as training, actually experiencing all phases of the metal building erection process. All the metal building contractors testifying for the Petitioner described on-the-job progressive training programs and two of the Intervenors' witnesses did as well. Mr. Morrow, testifying for the Intervenors, acknowledged that even a journeyman ironworker must learn "tricks of the trade" before he can successfully engage in metal building erection. Mr. Jon Goins (Chief of the Bureau of Apprenticeship) at the time the Petitioner's application was filed, admitted that he had "no trouble determining that it was followed with the proper training and everything, it could be learned in the customary way."
It must be concluded that the unrefuted evidence establishes that the trade of metal building assembler is "customarily learned in a practical way through a structured, systematic program of on-the-job supervised training." Section 446.092(1), Florida Statutes (1981).
The evidence adduced by the Petitioner, with regard to Section 446.092(3), establishes that a metal building assembler installs every integral part of a metal building system supplied by its manufacturer. In performing those tasks, the assembler performs manual, mechanical or technical tasks requiring concomitant skills and knowledge acquired with a minimum of 2,000 hours of work and training outside the classroom. The Petitioner established that a wide panoply of manual, mechanical and technical skills are involved in all facets of the erection process, beginning with unloading and "shaking out," pre-assembly, hoisting, proper use of fasteners and tools, correct methods for working in, on and around the building, installation of wall and roof panels, insulation, trim, flashing and accessories, as well as caulking and rendering it weather tight.
The testimony of Intervenor's witnesses even renders it obvious that training as a metal building assembler requires in excess of one year and it was established by the Petitioner that generally an assembler requires from three to five years for a complete course of classroom and on-the-job training. Indeed one contractor testifying for the Petitioner observed that it would require approximately two years to train a journeyman ironworker to become a competent metal building assembler. Mr. Goins, the Chief of the Bureau of Apprenticeship at the time the petition was filed, acknowledged that he was satisfied that the metal building assembler program filed with his office met the requirements of Section 446.092(3). It must be concluded, based upon the Petitioner's unrefuted evidence, that the occupation of metal building assembler does involve manual, mechanical and technical skills and knowledge requiring more than 2,000 hours of work and training apart from time spent in related construction for purposes of the above statutory subsection.
Section 446.092(5) requires that for an occupation to be apprenticeable it must involve "development of skills sufficiently broad to be applicable in like occupations throughout an industry, rather than of restricted application to the products or services of any one company." Witnesses for all parties concurred that the skills required to erect metal buildings could be
applied to any metal building manufactured by virtually any manufacturer. All metal buildings were shown to involve the same basic technology and all are erected primarily in the same fashion.
Mr. Goins testified for the Department, however, that his interpretation of "industry" as used in this subsection was the "construction industry as a whole." This was the interpretation also officially followed by the Bureau of Apprenticeship. Mr. Goins testified that utilization of this broad interpretation of industry was a factor in the determination that the metal building assembler should not be recognized as an apprenticeable occupation. He testified that this interpretation of the term industry was applied generally, although it was never adopted as a rule of the department. The Petitioner's construction of the term industry is a more narrow one, taking the view that the trade of metal building assembler involves development of skills sufficiently broad to be applicable throughout the metal building industry, rather than the entire construction industry. Mr. Goins acknowledged that if this more narrow interpretation were adopted then the Petitioner's apprenticeship application would have satisfied the requirements of this subsection. The undersigned concludes that the record is devoid of any evidence justifying the utilization of a non-rule policy to interpret the term industry in such a broad fashion. To do so is not logical because the construction industry involves so many skills and occupations. For instance, ironworkers do not work as carpenters with the use of lumber. Nor do they or carpenters, as a trade, work with cement. The trades of roofing or earth moving or grading of sites also involve different occupations all within the construction industry. It simply is not logical to presume, as the department did, that the skills of a metal building assembler, in order to be an apprenticeable occupation, should be applicable to the construction industry as a whole, the construction industry is simply too large and involves too many essentially unrelated skills for it to be reasonable that one apprenticeable occupation or apprenticeship program should include training which makes its skills applicable to the entire industry. The record is devoid of evidence other than Mr. Goins' own conclusory opinion statement that would support such an interpretation. The department has thus failed to adequately explain and support its "non-rule policy" in this regard as required by Florida Cities Water Company v. Florida Public Service Commission,
384 So.2d 1280 (Fla. 1980) and McDonald v. Department Of Banking and Finance, 346 So.2d 56 (Fla. 1st DCA 1977).
On the other hand, the record amply supports the Petitioner's interpretation of the term "industry" since the Petitioner has established that the skills and techniques learned by metal building assemblers apply throughout the facet of the construction industry involving exclusively the erection of metal buildings. The skills were definitely shown to be not restricted in application to the products of any one company and yet they did not involve many of the elements of the ironworker craft, especially working with heavy structural steel members, with heavy erection equipment, steel reinforcing bars and the like. Thus, the skills and techniques learned by metal building assemblers are shown to apply to one particular type of occupation, although it is a broader application than just to one company. The plain and ordinary language in Section 446.092(5) concerns the portability of the skills learned among employers, rather than restricted to a particular company. That section refers to "like occupations" and this must be interpreted to mean that the skills learned by metal building assemblers should be transferable among employers when the assembler is engaged in a "like occupation" or, in effect, the same work. The Petitioner demonstrated that, indeed, that is what is involved in metal building assembly work. Thus, it must be concluded that the Petitioner has met the requirements of Section 446.092(5).
Section 446.092(2) requires that an apprenticeable occupation be: (1) commonly recognized throughout the industry; or (2) recognized with a positive view towards changing technology; or (3) recommended by the Florida Apprenticeship Council.
The Intervenor and Respondent contended that because the occupation of metal building assembler is work "claimed" by the Ironworker's Union (Intervenors) as falling within its craft "jurisdiction," the occupation is not commonly recognized as a separate trade throughout the construction industry. Petitioner's witnesses, however, established the complexity of metal building assembler processes and the fact that existing craft training programs (the ironworkers) do not adequately teach metal building assembly and erection skills. The occupation of metal building assembler was shown to be unique to the construction industry and to possess sufficient distinctiveness in the skills required and the methods employed in the layout assembly and erection of metal buildings to be considered a separate craft within the overall construction industry. Moreover, the evidence establishes that metal building construction constitutes about 7 percent of all nonresidential construction in Florida. The vast precentage of metal building erection in Florida was established to be erected by nonunion crews. Thus, this evidence belies the ironworkers claim that metal building assembly traditionally falls within their craft, since they do not engage in such work to any significant extent. The work performed by a metal building assembler thus determines the extent of that trade or occupation in Florida, rather than the more traditional skills and processes of the ironworker's craft and the various other construction craft unions.
It should be noted that the U.S. Bureau of Apprenticeship and Training, in construing 29 CFR s. 29.4(b), the federal counterpart of the statute at issue, in determining whether an occupation is clearly identified and commonly recognized in an industry, looks to such factors as the number and dispersion of employers within the industry, industry growth experienced over the decade in terms of value for in-place construction, and estimates for numbers of persons engaged in the trade. The U.S. Department of Labor thus concluded that such factors materially bear on the issue of whether an occupation is clearly identified and commonly recognized throughout an industry. The U.S. Department of Labor thus chose not to look at traditional union craft jurisdictional boundaries, but instead evaluated the extent of the work performed in the marketplace in determining whether an occupation is apprenticeable. In determining that "metal building assembler" was an apprenticeable occupation, the Department of Labor, Bureau of Apprenticeship and Training also considered the skill content descriptions of the job, the training practices both in-place and proposed by the same Petitioners, as well as the customary length of vocational preparation for working in that occupation (see Petitioner's Exhibit 40). 1/
It is significant that Section 446.092(2) is substantially broader than 29 CFR s. 29.4. It contains an additional ground for qualifying an occupation as apprenticeable in that it permits apprenticeability to be found if the occupation is "recognized with a positive view toward changing technology." "Positive" is generally interpreted to connote increase or forward progress.
The legislature has mandated that new skill trades created through technological advances be anticipated in this statutory section and that apprenticeship programs be initiated in effect before they become commonly recognized. It is thus apparent that the legislature intended in this section that broad latitude be employed in determining whether an occupation is apprenticeable. The
Petitioner has demonstrated that rapid erection time, cheaper maintenance, and technological advances enabling metal buildings to serve greatly expanded functions have collectively contributed to findings and concludes with the statement that the occupation a dramatic change in construction techniques. The metal building has supplanted a large portion of the conventionally constructed commercial building market and this trend was shown to be continuing. The chief problem shown in the growth pattern of the metal building industry has indeed been demonstrated to be lack of properly trained field erection personnel. It was thus shown by the Petitioner that when the legislature expanded Section 446.092(2) to include occupations "recognized with a positive view toward changing technology" it was addressing the very problem presented by the Petitioner in this case. It thus must be concluded that the occupation of metal building assembler possesses the other characteristics imposed by 446.092 and has also been shown to be apprenticeable with a "positive view toward changing technology."
Prior to registration of an apprenticeship program in Florida, the standards contained in Rule 38C-16.02, Florida Administrative Code, must be met. Mr. Goins testimony for the Respondent, established that aside from the question of recognition of metal building assemblers as an apprenticeable occupation, he was satisfied that the Petitioner had complied with all existing regulations regarding apprenticeship standards. The Petitioner submitted, in evidence, its current apprenticeship standards for the apprenticeship programs it already operates, which had previously been approved by the Respondent. Additionally, the Petitioner submitted a survey of journeyman wage rates showing pay scales for metal building assemblers, an outline of related instruction for the proposed apprenticeship program, work processes and apprentice wage rates for the occupation and participating employer agreements. Additionally, with regard to the requirement of Rule 38C-16.03, Florida Administrative Code, which requires that a reasonable assurance of employment opportunities be demonstrated, the petitioner showed that the occupation employs about 600 assemblers per year in Florida and that 23 employers have already expressed interest in the metal building assembly apprenticeship program, should the standards be approved. Further, the Petitioner showed that a pilot metal building assembly program had been started in the Tampa Bay area with between 12 and 16 apprentices already enrolled. It is reasonable to conclude that ample employment opportunities are available for apprentices enrolled in the program in satisfaction of the requirement of Rule 38C-16.03(2). The Petitioner has demonstrated accurately that the metal building industry is experiencing substantial growth and that there is a substantial lack of qualified metal building assemblers or erectors in the industry in Florida and further that the industry is indeed separate and apart from other trades or occupations in the construction industry such as ironworkers, sheet metal workers or carpenters. Expert testimony put on by the Petitioner establishes that the metal building assembler trade suffers primarily from lack of qualified field direction personnel and the lack of such personnel is the dominant problem facing the metal building industry which that trade serves. In short, the Petitioner established that its proposed apprenticeship program meets all requirements for registration in Florida.
It has, therefore, been established by the Petitioner that the occupation of metal building assembler satisfies all criteria contained in Section 446.092, Florida Statutes (1981), and is an apprenticeable occupation and further that the Petitioner has complied with all lawful requirements for approval of its metal building apprenticeship program.
Having considered the foregoing findings of fact, conclusions of law, the candor and demeanor of the witnesses and the pleadings and arguments of counsel, it is, therefore
RECOMMENDED:
That a Final Order be entered by the Respondent approving the trade of "metal building assembler" as an apprenticeable occupation and that the application by the Petitioner for approval of its apprenticeship program for metal building assemblers be approved.
DONE and ENTERED this 14th day of January, 1983, in Tallahassee, Florida.
P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 14th day of January, 1983.
ENDNOTE
1/ Petitioner's Exhibit 40 is a letter written on the U.S. Department of Labor letterhead from James Mitchell, the Bureau of Apprenticeship and Training Administrator, to Ms. Rita Vaughn, the Petitioner's Education Manager in Washington, D.C., dated November 20, 1981. That letter was initially excluded from evidence on hearsay grounds. It contains a number of factual of metal building assembler does in fact meet the criteria for apprenticeable occupation. The Bureau of Apprenticeship and Training is a federal agency responsible for registration of apprenticeship programs for federal purposes. 29 CFR s.
29.2(1). The administrator who authored Exhibit 40 directs the Bureau's operations. Before an apprenticeship program can be approved, it must have characteristics or criteria contained in Section 29.4. Approval of an apprenticeship program is evidenced by a certificate of registration "or other written indicia." Section 29 CFR s. 29.2 (1). Petitioner's Exhibit 40 clearly constitutes "written indicia" by the administrator of that bureau as to the apprenticeablity of "metal building assembler" for federal purposes. As such, it is now determined that Petitioner's Exhibit 40 fits within the public records exception to the hearsay rule, as a report or written statement of a public agency "setting forth the activities of the office or agency, or matter observed pursuant to a duty imposed by law as to matters which there was a duty to report. . . ." Section 90.803(8), Florida Statutes (1981). Thus, Exhibit 40 should be admitted into evidence and is hereby considered as such. Moreover, Section 446.092, Florida Statutes, and Section 29.4, Code of Federal Regulations, are substantially similar and the state statute was obviously intended to accomplish that same basic purpose as its federal counterpart. A state court, in construing a state statute which is nearly identical to a federal law, will follow the construction of the federal law insofar as that
construction is not inharmonious with the spirit and policy of state legislation. State ex rel. Rackard v. Cook, 108 Fla. 157, 146 So.223 (1933); Gay v. Inter-County Tel. & Tel. Co., 60 So.2d 22 (1952); Pasco County School Board v. F.P.E.R., 353 So.2d 108 (Fla. 1st DCA 1978). Thus, Exhibit 40 is also admissible on the basis of relevancy.
COPIES FURNISHED:
William R. Radford, Esquire
1600 SE First National Bank Bldg. Miami, Florida 33131
James W. Linn, Esquire
Suite 600 - Lewis State Bank Bldg. Post Office Box 1528
Tallahassee, Florida 32302
Kenneth Hart, Esquire
2562 Executive Circle, East Tallahassee, Florida 32301
Steven Malone, Esquire 1215 Thomasville Road
Tallahassee, Florida 32303
Wallace E. Orr, Secretary Department of Labor and
Employment Security Suite 206, Berkley Building
2590 Executive Center Circle, East Tallahassee, Florida 32301
| Issue Date | Proceedings |
|---|---|
| Apr. 27, 1983 | Final Order filed. |
| Jan. 14, 1983 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Apr. 22, 1983 | Agency Final Order | |
| Jan. 14, 1983 | Recommended Order | Approve new apprentice training in metal building assembly. |
DENNIS WHITE vs CONSTRUCTION INDUSTRY LICENSING BOARD, 80-002146 (1980)
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MARGARET K. ROBERTS vs. FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD, 80-002146 (1980)
CONSTRUCTION INDUSTRY LICENSING BOARD vs. JOHN B. ROBERTS, 80-002146 (1980)
