United States Department of Labor
Office of Administrative Law Judges Law Library

DAVIS-BACON ACT INDEX

 

Prepared by

 

DIVISION OF FAIR LABOR STANDARDS

 

FEBRUARY 1990 (revised)

This document covers Heading topics beginning with "B" and "C"
Return to full Table of Contents

 

Beginning of Construction
Bridge Construction
Building Construction
Burden of Proof
Carve-Out Theory
Collective Bargaining Agreements
Contract Work Hours and Safety Standards - Liquidated Damages
Contract Work Hours and Safety Standards Act - Request for Exemption
Contract Work Hours and Safety Standards - Violations
Contracting Agency Advice
Copeland
Coverage - Authority to Issue Rulings
Coverage - Construction, Alteration or Repair
Coverage - Contractor
Coverage - Contractual Agreement
Coverage - Experimental or Preliminary Work
Coverage - In General
Coverage - Equipment Repair Shop Employees
Coverage - Excluded under Section 4 of Davis-Bacon
Coverage - Housing and Community Development Act of 1974
Coverage - Incorporation by Reference
Coverage - Laborers and Mechanics
Coverage - Leases
Coverage - Locality
Coverage - Maintenance
Coverage - Materialman
Coverage - Pilot Holes
Coverage - Public Building or Public Works.
Coverage - Site of Work
Coverage - Subcontractors
Coverage - Truck Drivers.
Coverage - Urban Mass Transportation Act

 

BEGINNING OF CONSTRUCTION

 

Johnson Electric, Inc.
WAB Case No. 85-21, May 16, 1986

   The term "prior to the beginning of construction" in the National Housing Act, 12 U.S.C. 1715c, refers to the starting of the first construction on the project whether by the prime or a subcontractor and not by each individual contractor. Construction started on the project on April 24, 1984 and the electrical contractor received the subcontract on June 22, after a collective bargaining agreement's lower rate became effective. The Board denied a variance to the subcontractor in view of the above facts and the fact that the National Housing Act contains no variance provision.

 

Parkside Housing Associates Project
WAB Case No. 87-53, February 27, 1989

   In an Order to Remand concerning when construction began on the project, the Board stated:

   The petitioner must demonstrate to the satisfaction of the Administrator that the claimed work and the establishment of temporary lighting was undertaken with the intention of proceeding forthwith with the prosecution of the project work pursuant to the loan documents and a continuing performance schedule with which the general contractor was expected to comply. This is an essential element of the basis upon which the remand is made.

 

BRIDGE CONSTRUCTION

 

Wagman, Inc.
WAB 82-2, July 30, 1982

   Where the wage decision in question, which contained a schedule of wage rates for construction over lent and a separate schedule for construction over water, reflected negotiated heavy. construction wage rates, then only "heavy" construction projects (and not "highway" projects) should be looked at in determining whether employees who apply a protective epoxy coating to bridge parapet walls and dividers were correctly classified as painters by the Wage and Hour Division.

 

Interstate Project No. I-65-1(85)23, Highway Bridge over Mobile Bay, Mobile and Baldwin Counties. Ala.
WAB 77-2, Oct. 21, 1977

   The heavy wage rates issued for construction of tied arch span of the obile Bay Bridge did not reflect wages prevailing for bridge construction in the area. The projects included in the Wage-Hour survey were not projects of a character similar.

   The Department of Labor cannot disregard wage rate data from very similar bridge projects located in Mobile County just because contracts for those bridges have been advertised with highway rates by the State Highway Department.

   When the Department of Labor gives contracting agencies the right to obtain the required wage determinations from the Federal Register and to exercise their judgment as to the appropriate schedule for a particular project, DOL should give due weight to that agency's decision.

 

Prevailing Wage Rates applicable to three construction projects of ARTA
WAB 75-5 (Supplemental decision), Oct. 16, 1975

   In determining the prevailing wages for a segment of the MARTA system, ESA should exhaust all wage data in the "heavy" data base before utilizing data from major bridge projects in highway work that was awarded under separate bridge contracts.

 

BUILDING CONSTRUCTION

 

Review of Davis-Bacon Wage Decisions 77-TX-4190 through 77-TX-4207 and related decisions in Texas
WAB 77-23

 

The new definition of "building" construction published by Wage-Hour in its wage determinations and which included sheltered enclosures used to house machinery and equipment cannot be applied to the construction of the subject water and sewer treatment plant. In the present case there is a legitimate dispute as to the category of construction into which the contract work properly falls. This definition is in the nature of a rule and if a definition is deemed desirable, it should be adopted in accordance with rulemaking procedures. Use of this definition is to be discontinued until it can be properly adopted.

 

Construction of Waco Metropolitan Area Regional Sewerage System
WAB 83-4, April 22, 1983

   The determination of the Wage and Hour Division that heavy construction wage rates should apply to the construction of the entire Waco Metropolitan Area Regional Sewerage System Improvement Project with the exception of the administration building alteration, the main building, the shop building and the storage building which were to be built pursuant to building construction rates, is upheld.

   The practice set forth in South Cobb Waste Water Treatment Plant , WAB-76-19, which affirmed the practice of issuing both heavy and building wage rate schedules for project. properly characterized as involving more than one category of construction is correct and should be followed by the Wage and Hour Division.

 

 

Wage Rates for Biscayne Retirement Home
WAB 83-2, March 16, 1983

   A three-story health care center for convalescent purposes consisting of 120 beds, each floor being served by a nurses' station and other medical equipment is not a project of a character similar to the usual low-rise residential apartment or single family home from which the residential wage rate information is compiled in wage and home surveys. Such a facility is more similar to hotel, motel, clinic, hospital, dormitory, barrack or low rise commercial construction, all of which are included in the general category of building construction and are issued building construction wage rates by the Wage and Hour Division.

 

Largo Landing Fellowship House
WAB 82-24, March 11, 1983

   Building construction wage rates, and not residential rates, were correctly applied to construction of the subject project, a six-story, 106 unit apartment building with elevator, to be used for housing the elderly and handicapped.

 

Wage Rates Applicable to Construction of 69th Street Wastewater Treatment Plant, Houston, TX
WAB 77-29, March 3, 1978

   In the construction of the subject wastewater treatment plant, the heavy construction wage schedule should be applied to the filter beds and contact chambers. The changes in the design and construction of the beds and chambers resulting from the addition of a concrete slab and administrative office building on top of the beds and chambers were not substantial enough to change the traditional characterization of the construction of the beds and chambers from heavy to building construction.

   The Board's decision in Brown's Mill Road Bus Facilities , WAB Case No. 75-11, does not require it to consider the bids and chambers as incidental to the building. Particularly this is so where there has been a common practice of dividing those plants between building and heavy construction and the structure can be easily divided into its building and heavy construction components.

 

Wage Rates Applicable to Construction of East Lake Station Site Improvements and Parking Lots
WAB 78-5, March 23, 1978

   The Assistant Administrator correctly ruled that the construction of two parking lots, although performed under separate contracts, was "incidental" to the construction of the MARIA Bast Lake Station, and that therefore the building wage schedule was applicable to construction of the parking lots as well as the station. The "incidental" rule policy is a long standing Wage-Hour policy that has been reviewed and approve by Congressional Oversight Committee and the Wage Appeals Board, and is not invalid under the Administrative Procedure Act. The Davis-Bacon Act refers to projects of a character similar, not similar work as the basis of determining prevailing wage rates.

 

Review of Davis-Bacon Wage Decisions 77-TX-4190 through 77-TX-4207 and related decisions in Texas
WAB 77-23

   The new definition of "building" construction published by Wage-Hour in its wage determinations and which included sheltered enclosures used to house machinery and equipment cannot be applied to the construction of the subject water and newer treatment plant. In the present case there is a legitimate dispute as to the category of construction into which the contract work properly falls. This definition is in the nature of a rule and if a definition is deemed desirable, it should be adopted in accordance with rulemaking procedures. Use of this definition is to be discontinued until it can be properly adopted.

 

Prevailing Wage Rates Applicable to the Construction of Lower Potomac Pollution Control Plant
WAB 77-20, Sept. 30, 1971

   The Assistant Administrator correctly issued both building and heavy wage rates to apply to construction of the subject water and sewer treatment plant even though a recent survey in the area demonstrated that only a single det of wage rates had been paid on such plants. When it is clear from the nature of the project itself in a construction sense that it is to be categorized as either building, heavy, or highway, it is not necessary to resort to area practice to determine the appropriate categorizations of the project. However, wage rate information from the survey may be used to establish prevailing building or heavy wage schedules to be used in the county.

 

Review of Davis-Bacon Wage Decision 77-TX-4174 through 4189 and related decisions in Texas
WAB 77-19, Dec. 30, 1977

   The Assistant Administrator incorrectly omitted wage rates for paving and Utilities incidental to General Building Construction. from a series of wage determinations for building Instruction recently issued in Texas. The record indicates hat in Texas one set of rates prevail for building construction and a different set of rates prevail for the incidental paving and utilities related thereto. This case is distinguishable from the decision in Lower Potomac Pollution Control Plant , WAB 77-20, in which the project consisted of both heavy and building construction, and the incidental work does not become heavy-highway because lower rates are paid on it.

 

Prevailing Wage Rates Applicable to South Cobb Waste Water Treatment Plant
WAB 76-19, Nov. 19, 1976

   Wage-Hour erred in issuing only a building schedule for the water and sewer treatment plant to be constructed in Cobb County, and is directed to modify the wage decision to also include a heavy construction wage schedule. It is Wage-Hour's general practice to issue two schedules for such projects, and there is no factual basis for issuing just the building schedule in this case.

 

Prevailing wage rates applicable to the construction of Edgewood Terrace II
WAB 73-2, April 4, 1973

   Petitioners request that only wage data on high-use residential projects, rather than building construction projects in general, be considered in determining the prevailing wage rates for the subject high-use residential project is denied. The planning, architectural factors, construction and development characteristics of high-use residential construction place it in the same category as other highuse building construction in the District of Columbia. The question is whether the industry itself has, in recognition of a local situation, carved such projects out of the general building schedule for wage rate purposes.

 

Prevailing wage rates applicable to construction of Wisconsin Avenue Nursing Rome, Washington, D.C.
WAB 72-9, Oct. 24, 1972

   The wage rates for general building construction are applicable to construction of the subject project, an eight story nursing home. Construction experience in the District has accepted and continues to accept the idea that nursing home construction, even when less than four stories in height, has been considered general building and that the majority of laborers and mechanics employed on such construction have been paid at the general building rate schedules.

   Petitioner has a two-step burden to justify setting aside the decision of ESA's Wage Determination Branch. The first step is to establish that nursing homes of the type of construction here involved is not a project of character similar to the type of construction in the area which has been constructed under the general building wage rate schedule. The second step is a showing that the appropriate wage rate schedule applicable to nursing homes in the area should then be the wage rates paid a majority of workers on high-rise residential construction or some other type of construction. The Board need not reach the second step because petitioner has not made a sufficient showing on the basis of planning, development, engineering, architectural and construction factors that the Wage Determination Branch was in error in continuing to classify nursing home construction along with other types of general business construction.

 

Prevailing wage rates applicable to the construction of Abbott House (Cedar Lane Apartments), and similar construction projects
WAB 72-5, July 24, 1972

   Wage predeterminations must be predicated upon careful scrutiny of the facts and circumstances in each case and on a locality-by-locality basis. The Mattapony rule, namely, that high-rise residential construction calls for the application of the commercial or general building construction scale of wages and that garden-type or walk-up multi-family residential construction calls for lower wage rates, enunciated the current area practice followed by the construction industry in that area at that time. St did not establish a principle to be applied throughout the country. No doubt, in many instances involving high-rise residential construction, the Division will find commercial rates prevailing and appli- cable. The factual situation in this case appears otherwise, and would seem to fall within the Board's recognition as expressed in the Mattapony and Stevenson cases that a petitioner could establish as area practice that high-rise residential construction is in fact constructed by laborers and mechanics employed at wage rates lower than the recognized commercial wage scale.

 

Determination of the Prevailing wane rates applicable to construction of the Stevenson Apartments
WAB 70-7, Jan. 14, 1971

   In a locality where two sets of rates applied to apartment construction, the lower rate applying to garden-type, multi-family residential construction, and the higher rate to all other types of apartment construction, the Board reaffirms the principle enunciated in the Mattapony decision, WAB 64-2, June 29, 1965, that normally high-rise apartment construction is considered general building construction and takes the higher wage rates. However, the case is remanded to the Wage Determination Board for examination of the payment practices with respect to high-rise residential construction in order to determine whether the building and construction industry has accepted the exclusion of high-rise residential construction from the general building construction category for wage rate purposes.

 

Prevailing wage rates applicable to the construction of Abbott House (Cedar Lane Apartments), and similar construction Projects
WAB 72-5, July 24, 1972

   Wage predeterminations must be predicated upon careful scrutiny of the facts and circumstances in each ease and on a locality-by-locality basis. The Mattapony rule, namely, that high-rise residential construction calls for the application of the commercial or general building construction scale of wages and that garden-type or walk-up multi-family residential construction calls for lower wage rates, enunciated the current area practice followed by the construction industry in that area at that time. It did not establish a principle to be applied throughout the country. No doubt, in many instances involving high-rise residential construction, the Division will find commercial rates prevailing and applic- able. The factual situation in this ease appears otherwise, and would seem to fall within the

Board's recognition as expressed in the Mattapony and Stevenson eases that a petitioner could establish as area practice that high-rise residential construction is in faet constructed by laborers and mechanics employed at wage rates lower than the recognized commercial wage scale.

 

Determination of the prevailing wage rates applicable to construction of the Stevenson Apartments
WAB 70-7, Jan. 14, 1971

   In a locality where two sets of rates applied to apartment construction, the lower rate applying to garden-type, multi-family residential construction, and the higher rate to all other types of apartment construction, the Board reaffirms the principle enunciated in the Mattapony decision, WAB 64-2, June 29, 1965, that normally high-rise apartment construction is considered general building construction and takes the higher wage rates. however, the case is remanded to the Wage Determination Board for examination of the payment practices with respect to high-rise residential construction in order to determine whether the building and construction industry has accepted the exclusion of high-rise residential construction from the general building construction category for wage rate purposes.

 

Cherry Hill Construction, Inc.
WAB Case No. 85-27, October 2, 1987

   The Board rejects petitioner's contention that it is not the responsibility of subcontractors when submitting their proposals to prime contractors to determine whether the building or heavy schedule contained in the wage determination applies to the project. Bidding contractor. must assume this responsibility and the applicable regulations at 29 CFR 1.6(b) and 5.13 provide procedures to follow when a bidding contractor has any doubt with respect to the way in which the Davis-Bacon Act and wage determinations will be applied.

 

Green Island Associates
WAB Case No. 86-21, August 7, 1987

   The gutting, refurbishing and reconstructing of the interior of the Sagamore Hotel falls within the category of building construction, and the Wage and Hour Division need not look at residential construction wage data in making the applicable wage determination.

 

Yuma Desalting Plant
WAB Case No. 84-23, January 23, 1985

   The majority of the Board affirms the Wage and Hour practice of issuing both heavy and building wage rate schedules for projects properly characterized as involving construction identified as building construction and as heavy construction. An exception to this rule exists when area practice dictates one mingle wage schedule prevails on a project as the result of the practices of local contractors performing similar projects in the area. In this matter, the area practice doe. not su W ort such an exception.

   Five pre-engineered metal structures with reinforced concrete foundations and floor slabs were only housing incidental to the equipment and machinery that was a part of the treatment process of the desalting plan. This work should be classified an heavy construction.

   The construction of the desalting building foundations and superstructures, including interior work, bear the characteristics of a building construction project, and should be characterized as building construction. However, two-thirds of the desalting structure contains equipment devoted to the desalting process, and installation of this equipment should be characterized as heavy construction.

 

BURDEN OF PROOF

 

Carabetta Enterprises, Inc.
WAB 74-4 and 74-4A, Jan. 30, 1976

   The petitioner, as the moving party, teas an initial burden of supporting its contention with factual data that prior to the advertising for bids there was a practice, or at least a discernible pattern, that work of the type in question was accepted in the community as different from the traditional practice along the crafts, and that the work in question was not done by Ironworkers. The petitioner here produced nothing factual to overcome a presumption of administrative competence and expertise.

   Wage-Hour correctly determined that the work of erecting precast concrete panels was properly classified as ironworkers' ant not carpenters' work. In determining which classification of worker performs certain work, the local practice must be based on experience in the industry prior to the issuance of the wage determination in dispute, the pivotal point in time being when the job goes out for bids with the appropriate wage rates (and work classifications) in the bid documents.

 

Structural Services
WAB 82-13, June 22, 1983

   Contractors and subcontractors who undertake contracts covered by the Davis-Bacon and related acts have an obligation to keep accurate records of wages, overtime and fringe benefits. Failure to keep such records is done at their peril. Without proper payroll records, Wage & Hour compliance officers are compelled to invoke the criteria set forth in Anderson v. Mt. Clemens Potters Co. , 328 U.S. 690 (1964) which requires the employer to produce evidence of the precise amount of work performed or evidence to rebut the reasonableness of the inferred extent of violations, otherwise employees may be awarded back wages even though the result may only be approximate.

 

CARVE-OUT THEORY

 

Wage Determination 76-DC-3000 Applicable to FHA Projects 000-44207 LDP/SUR/-2900 Van Ness Street, N.W., Washington, D.C.
WAB 76-11, Jan. 27, 1977

   Petitioner's request that the Board recognize highrise residential construction in the District of Columbia as a separate category for wage determination purposes is denied. The test of whether a project is of a character similar to another project refers to the nature of the project itself in a construction sense, not to whether nonunion workers are employed. Since the 1935 amendments to the Davis-Bacon Act, the statutory focus has always been on the character of the project itself rather than on who was employed on the project or how much he or she was being paid. The Board rejects the concept of a so-called "carve- out" theory which would appear to support the idea that one project could be considered dissimilar from another project on some basis other than the nature of the project itself.

 

Washington National Airport
WAB 76-5, 1976

   The "carve out" principle recognized by WAB and by ESA in Washington area wage decisions relates to entire classes of construction and not to a single project or contract.

 

Prevailing wage rates applicable to the construction of Edgewood Terrace II
WAB 73-2, April 4, 1973

   Petitioners request that only wage data on high-use residential projects, rather than building construction projects in general, be considered in determining wage rates for the subject high-use residential project is denied. The planning, architectural factors, construction and development characteristics of high-use residential construction place it in the same category as other high-use building construction in the District of Columbia. The question is whether the industry itself of a local situation, carved such projects out of the general building schedule for wage rate purposes.

 

COLLECTIVE BARGAINING AGREEMENTS

 

Seaward Construction Company, Inc.
WAB 82-5, February 3, 1983

   Where the wage decision reflected negotiated rates for line construction and called for different hourly wage rates depending on where the work was performed, as well as a base rate to be paid to all men working out of the employer's permanent shop, the contractor could not, after receiving the contract, lease a warehouse and call it a permanent shop. in order to pay his employees the base rate. To reach such a conclusion would render the collective bargaining agreement meaningless.

 

CONTRACT WORK HOURS AND SAFETY STANDARDS ACT

LIQUIDATED DAMAGES

 

American Mutual Protective Bureau
WAB 77-5, Sept. 13, 1978

   Department of Labor Regulation 29 CFR 5.8 clearly states that a contractor assessed liquidated damages may be relieved of liability for its payment only under circumstances where the contractor violated the provisions of the Contract Work Hours and Safety Standards Act inadvertently notwithstanding the exercise of due care on his part. Although in this case petitioner's failure to pay overtime may have been inadvertent, his failure to read his contract and thereby inform himself and his bookkeeper of the requirements with regard to overtime compensation for his employees cannot be construed as exercising due care.

 

 

Kenneth E. Brown Construction Co., Inc.
WAB Case No. 84-17, March 12, 1985

   The Board affirmed the Administrator's decision denying the contracting agency's recommendation that liquidated damages be waived. The contractor had a history of overtime violations. The Board was unable to consider petitioner's argument that no violations occurred because the employees were in fact "subcontractors". The question of violations was not properly before the Board; the Administrator's decision being appealed did not involve this issue.

 

Major Associates, Inc.
WAB Case No. 84-14, May 20, 1985

   Contractor submitted falsified payrolls showing employees working five 8-hour days when they actually worked four 10-hour days. This concealment, whether caused by contractor or his agents, shows violations were not "inadvertent" and that contractor did not exercise "due care". Thus liquidated damages may not be waived.

   Liquidated damages under the Contract Work Hours and Safety Standards Act were adjusted to a lower amount, as the violations were not flagrant. This, coupled with the fact that petitioner performed previous government contracts with no known violations led the Board to believe that violations did not warrant the full assessment.

 

Bright Construction Company, & Trac Excavating Company
WAB Case No. 85-3, October 1, 1985

   Liquidated damages can be reduced where the factual situation shows the violations in a case do not warrant the full assessment regardless of instances where the payrolls were falsified.

   The overtime violations and falsification of payrolls were the acts of the subcontractor. The prevention and/or detection thereof is not always a simple task by a prime contractor's most diligent efforts and careful procedures implemented to snare violating subcontractors. This, coupled with the fact that the petitioner has shown that it may not be able to seek relief from the subcontractor, leads the Board to believe that the violations in this case do not warrant the full assessment of liquidated damages.

 

Moorhead Construction Co., Inc.
WAB Case No. 85-25, January 21, 1986

   Secretary of Labor does not have jurisdiction to waive liquidated damages which were assessed in the full amount by the contracting agency under the Contract Work Hours and Safety Standards Act.

 

Puckett, Taul & Underwood, Inc.
WAB Case No. 85-7, July 23, 1985

   Concealment by submission of falsified payrolls shows violations were not "inadvertent" and that petitioner did not exercise "due care". Thus assessment of liquidated damages should not be waived.

   The Board can exercise equitable relief to reduce liquidated damages, but the facts do not warrant such relief in this case.

 

Pizzaqalli Construction Company, and R. L. Brooks
WAB Case No. 83-15, December 18, 1985

   Liquidated damages should not be waived where falsified payrolls have been submitted. However, liquidated damages can be reduced where the factual situation Shows the violations do not warrant the full assessment. To determine whether the full assessment of liquidated damages is mandated, it in necessary to examine the facts on a case by case basin. In such cases the Board is exercising equitable relief which it considers to be a fair adjustment commensurate with the violations.

   In this matter, a lower assessment was warranted by the facts that there was a short period of overtime violations, a small amount of violations, and the employees demanded 4 days of 40 hours with weekends off to return home and threatened job disruption.

 

Harrv Johnson Plumbing Co., Inc.
WAB Case No. 84-19, June 6, 1985

   Liquidated damages were not fully assessed but were adjusted lower by the Board for a first time government contractor where overtime violations were not flagrant. Although the agency head recommended waiver of damages, the Board upheld the Administrator's denial of a waiver and ruled that where there is a submission of falsified payrolls, the assessment of liquidated damages should not be waived.

 

Abernathv and Wood
WAB Case No. 87-41, January 9, 1990

   The Board reversed the decision of the Administrator, and in no doing agreed with the Department of Housing and Urban Development that liquidated damages assessed against the prime contractor for a subcontractor's violations should be waived. The Board concluded it was reasonable for the prime contractor to have believed it had Nettled all claims with it. agreement to pay the subcontractor's violations.

 

CONTRACT WORK HOURS AND SAFETY STANDARDS ACT

REQUEST FOR EXEMPTION

 

Harlow Restoration Corp.,
WAB 81-14, May 11, 1983

   Further, petitioner's request for a variation, tolerance or exemption from the 8-hour day provisions of the Act is denied because such a request was not made below to the Administrator and has not been subject to a final agency action.

 

CONTRACT WORK HOURS AND SAFETY STANDARDS ACT

VIOLATIONS

 

Harlow Restoration Corp.
WAB Case No. 81-14, May 11, 1983

   The language in the Contract Work Hours and Safety Standards Act prohibits requiring workers to work in excess of 8-hours per day without paying them time and a half for the excess hours worked per day. The 4 day, 40-hour workweek arrangement, even though agreed to by a union official and within knowledge of the contracting officer, does not excuse Petitioner from breach of the statutory provisions.

   Further, petitioner's request for a variation, tolerance or exemption from the 8-hour day provisions of the Act is denied because such a request was not made below to the Administrator and has not been subject to a final agency action.

 

Affolter Contractina Company, Inc.
WAB Case No. 87-11, June 16, 1989

   The Board affirmed the decision of the administrative law judge (ALJ) who "looked behind the facts" and concluded the basic hourly rate of $6.00 per hour and overtime rate of $9.00 per hour had been properly reported on the certified payrolls by the subcontractor. The Wage and Hour Division had alleged the contractor actually paid $7.00 per hour straight time for all hours worked and thus was required to pay $10.50 per hour for all over- time hours, while the AW concluded that the subcontractor was paying $7.00 not as a regular rate of pay but rather as an average of the $6.00 per hour basic rate plus the $9.00 per hour overtime rate based on employees working 20 hours of overtime.

 

CONTRACTING AGENCY ADVICE

 

Jos. J. Brunetti Construction Co. & Dorson Electric & Supply Co., Inc.
WAB Case No. 80-9, November 18, 1982

   Contractor's reliance on advice and directions from an official of FAR that the appropriate wage rate for the classification of electricians was the rate listed for "family residence construction not to exceed 4 unit apartments" rather than the rate for "other residiential constuction. was misplaced. The FHA definition of a "building" in terms of fire walls for fire protection has very little to do with the interpretation of a labor contract and of local area practice as to whether a garden type apartment project consists of family residences of less than five unit apartments.

 

Metropolitan Rehabilitation Corp.
WAB 78-25, Aug. 2, 1979

   Petitioner's reliance on contracting officer's advice regarding the appropriateness of wage rate does not relieve petitioner of responsibility to pay the correct wage rates to employees for two reasons --(1) the contracting officer's advice is not binding on the Department of Labor and does not estop DOL from requiring the payment of proper wages. Reorg. Plan No.14 gives DOL final authority in this regard, (2) the estoppel argument would not be binding on the laborers and mechanics themselves so as to cut off any individual rights they may have under the Davis-Bacon Act to receive the proper wage rate.

   The Davis-Bacon Act was intended to protect rights of laborers and mechanics employed on projects and not to protect contractors from bad advice given by someone without final authority. U.S. v. Binahampton Const. Co. ,347 U.S. 171 (1954).

 

Installation of Conveyor System, Naval Supply Center
WAB 78-24, April 6, 1979

   The Board cannot, once the contract has been awarded and work completed, issue a ruling with reference to this contract which would affect the wage requirements of the contract. The Contracting Officer acted in good faith and in accordance with the Department of Defense Acquisition Regulations in determining that the installation of the system was incidental to the supply contract and therefore did not require Davis-Bacon coverage.

 

Tollefson Plumbing and Heating
WAB 78-17, Sept. 24, 1979

   The Department of Labor is not estopped from requiring payment of plumber's rates because nut misled the contractor and delayed in advising the contractor that its apprentices were not being properly paid. Advice by a contracting agency is not binding on the Department of Labor as DOL has the final authority in this regard under the statutes and Reorga- nization Plan No. 14 of 1950.

 

Almeda-Sims Sludge Disoosal Plant Project
WAB 78-13, January 5, 1979

   The Board does not agree with EPA's position that its regional office had residual authority pursuant to the Federal Water Pollution Control Act, Reorganization Plan No. 14 of 1950 and AAM #68, to determine which wage schedule applied to the project. After the Department of Labor advised EPA to use the building wage schedule, EPA acted improperly in ignoring the directions of DOL.

 

Fry Brothers Corporation
WAB 76-6, June 14, 1977

   Under the Portal-to-Portal Act (29 USC 259) only a written ruling of the Secretary of Labor can be relied upon as a defense against liability for wages which must be paid under the Davi.-Bacon Act. "Reliance" on an oral Statement by a local official of the contracting agency cannot be a basis for finding that the contractor has complied with the labor standards requirements of the National Dousing Act, which does not provide any "good faith" exception.

 

Ross Brothers Construction Inc.
WAB Case No. 87-36, November 21, 1988

   Petitioner contended Umpgua was a supplier or materialman, that it had performed two earlier State projects on which it did not pay Davis-Bacon wages, and that prior to starting the project, it relied on an Oregon Dept. of Transportation ruling that Davis-Bacon rates were not applicable to their operation. However, the Board agreed with the Administrator that the inadvertent failure to assert coverage on the two earlier federally assisted State highway projects, cannot effect coverage of this project, and the fact that Umpqua's permit was specifically limited to use on State projects (thus inhibiting sale of aggregate to the public) is determinative.

   Concerning the alleged advice given by the State (which the State representative denied), the Board stated it had held in a line of cases that only the Secretary of Labor has the power to make rulings on Davis-Bacon issues, including coverage, and further noted that it had previously held that advice by a lowerechelon Wage and Hour official would not estop the subsequent, imposition of coverage.

 

COPELAND ACT

 

Builders, Contractors and Employees Retirement Trust and Pension Plan
WAB Case No. 85-6, December 17, 1986

   The Administrator's ruling that neither the Copeland Act nor Department of Labor regulations at 29 CFR 3.5(d) require that employer (as opposed to employee) contributions to a pension plan be either voluntarily consented to in writing or provided for in a bona fide collective bargaining agreement is reasonable and proper.

 

COVERAGE - AUTHORITY TO ISSUE RULINGS

 

United Construction Company, Inc.
WAB 82-10, January 14, l983

   It is not the Comptroller General but the Secretary of Labor, pursuant to the Davis-Bacon Act and Reorganization Plan No. 14 of 1950, who has the sole authority to determine wage rates, to coordinate labor standards among the contracting agencies, and to provide for uniform enforcement of the Davis-Bacon and related acts.

 

Applicability of the Davis-Bacon Act to certain site warehouse employees of equipment dealers under Corps of Engineers contract, Dworshak Dam
WAB 72-4, June 1, 1973

   A finding and award by the Arbitrator that the work done by employees in question was not the work of warehouse-men and was not covered by the collective bargaining agreement was not a sufficient legal or factual basis on which the Board could render a decision. An arbitration award, whether adverse or favorable to an employee, is not conclusive of a determination of wage rates under the Davis-Bacon Act by this Board.

 

COVERAGE - CONSTRUCTION ALTERATION OR REPAIR

 

Watertown Housing Authority
WAB 83-8, March 14, 1983

   The Administrator's determination that a contract funded under the Comprehensive Improvement Assistance Program (CIAP), for cleaning, repainting, and Dealing of existing brick walls and the replacement of bricks where needed on two housing project. was maintenance or deferred maintenance, and not "construction" subject to a Davie-Bacon prevailing wage determination, will not be set aside in the absence of demonstrably compelling reasons supplied by the petitioner.

 

Applicability of Davis-Bacon and Related Acts to certain work Performed be employees of Alcoa Construction Systems, Inc.
WAB 75-6, Sept. 11, 1975

   Despite petitioner's contention that its contracts with the prime contractor were simply contracts which contemplated no onsite work other than might result under warranty provisions, and that the amount of this work was insubstantial and incidental to the supply contract, the Board held that the onsite repair work of factory prefabricated kitchen and bathroom modules performed by employees of the firm which supplied the modular unit was subject to the Davis-Bacon Act.

 

Compliance with the labor standards requirements of the Davis-Bacon and Related Acts, Transpo 72 Project, Dulles International Airport, Va.
WAB 72-11, Feb. 28, 1973

   A contract to lease, erect and remove prefabricated buildings for use as business centers at the U.S. International Transportation Exposition was subject to Davis-Bacon requirements. Looking at the transaction as a whole, the substantive general conditions applicable to site work on Federally-owned property, the nature of the specifications for site work, the working drawings, and the methods of payment, the Board concluded that the work in question was a public work of the United States and that the procurement arrangement was a contract for construction subject to the Davis-Bacon Act.

 

Woodslde Village
WAB 75-13, June 25, 1976

   The cleaning work performed during construction, as well as the repair work performed on prefabricated kitchen and bathroom units, was construction work covered by the Davis-Bacon Act.

 

Thomas J. Clements, Inc.
WAB 84-12, January 25, 1985

   The Board affirms the conclusion of the administrative law judge that maintenance workers performing construction and rehabilitation work were subject to the Davis-Bacon provisions.

 

Applicability of Davis-Bacon Act to Lease of Space for Outpatient Clinic, Crown Point, Indiana
WAB Case No. 86-33, June 26, 1987

   The Veterans Administration (VA) solicited bide from private developers to construct a building for It to lease for 15 years with a 5-year option. This agreement is a "contract for construction" as well as a lease. As stated in Military Housing. Fort Drum , WAB No. 85-16, "[I]t has been the traditional position of the Department of Labor that If more than an incidental amount of construction-type activity is involved in the performance of a government contract, the Davis-Bacon Act is applicable to that work."

 

Military Housing, Fort Drum, N.Y.
WAB Case No. 85-16, August 23, 1985

   An agreement authorized by the Military Construction Authorization Act of 1984 to lease for 20 years family bousing units which are to be constructed off the military base is a contract for construction of a public building on work subject to the Davis-Bacon Act.

   It has been the traditional position of the Department of Labor that if more than an incidental amount of construction activity is involved in the performance of government contract, Davis-Bacon applies to that work.

 

COVERAGE - CONTRACTOR

 

Werzalit of America, Inc.
WAB Case No. 85-19, April 7, l986

   Werzalit, which received Urban Development Action Grant (UDAG) funds through a local government, is a contractor within the meaning of the Davis-Bacon provisions of the Rousing and Community Development Act of 1974. The Board rejects Werzalit's contention that it stands in the place of the recipient local government. The statute limits grant recipients to States and units of local government. Therefore, Werzalit's own employees who installed a boiler in its own plant with the assistance of UDAG funds must be paid the Davis-Bacon pre-determined rates.

 

COVERAGE - CONTRACTUAL AGREEMENT

 

Arbor Hill Rehabilitation Project
WAB Case No. 87-4, November 3, 1987

   Two of the Board's three members concluded that petitioners are subject to the Davis-Bacon provisions because they contractually agreed to such provisions.

 

COVERAGE - EXPERIMENTAL OR PRELIMINARY WORK

 

Jos. J. Brunetti Construction Co. & Dorson Electric & Supply
WAB Case No. 80-9, November 18, 1982

   The so-called preliminary work or "experimental" work was subject to the Davis-Bacon requirements.


COVERAGE - IN GENERAL

 

Prevailing Wage Rate Applicable to the Hartsfield Airport, Atlanta. Ga.
WAB Case No. 77-4, February 25, 1977

   The 10-day rule did not apply to a situation where Wage-Hour advised the City of Atlanta of the correct wage rates for the project within 10 days of bid opening because the Davis-Bacon and related Acts had not attached to this project since the City had not as yet requested federal funds. Therefore, Wage-Hour's telegram advising the city of the modified rates was merely advisory.

 

Burlington Northern Railroad Bridge over the Willametta River
WAB Case No. 86-7, June 30, 1986

   The Board affirms the decision of the Deputy Administrator, Wage and Hour Division, which held that the Davis-Bacon Act does not apply to proposed major alterations of a railway bridge made pursuant to the Truman-Hobbs Act. The Truman-Hobbs Act does not contain Davis-Bacon labor standards provisions; nor is there coverage under the Davis-Bacon Act itself as no "contract" exists to which the United States is a party.

 

COVERAGE - EXCLUDED UNDER SECTION 4
OF DAVIS-BACON ACT

 

J.W. Bateson Co.
WAB Case No. 87-38, December S. 1989

   A majority of the Board held that trainees in a training program approved by the Veterans Administration under the Emergency Veterans Job Training Aet of 1984 (EVJTA) were not due Davis-Bacon wages. The majority concluded the EVJTA program was excluded from Davis-Baeon coverage by section 4 of the Davis-Bacon Act (40 U.S.C. 276a-3) which provides "This Act shall not be construed to supersede or impair any authority granted by Federal law to provide for the establishment of specific wage rates." The administrative law judge's (ALJ) conclusion was affirmed by the entire Board rejected the ALJ's determination that the EVJTA was part of the Job Training Partnership Act.

 

COVERAGE - HOUSING AND COMMUNITY DEVELOPMENT ACT OF 1974

 

Muskogee Shopping Mall
WAB Case No. 85-26, January 21, 1986

   The Board upheld the opinion of the Deputy Administrator, Wage and Hour Division, that the Davis-Bacon provisions of section 110 of the Housing and Community Development Act of 1974 were applicable to the construction of the Muskogee Shopping Mall, but that the Department would not require the inclusion of the Davis-Bacon requirements in the developer's construction contracts for the mall. The City and developer entered into an agreement for construction of the mall without inclusion of the Davis-Bacon requirements on the advice of HUD. Negotiations were concluded prior to the effective date of section 1.6(f) of the regulations (29 CFR 1.6(f)), which permits retroactive application of a wage determination.

   The majority of the Board concluded that had the Davis-Bacon provision been properly included in the agreement, the construction would have been covered by the Davis-Bacon provisions, as federal funds were used to finance acquisition and clearance of the land upon which the mall project was situated, without which the mall could not be built.

 

Werzalit of America, Inc.
WAB Case No. 85-19, April 7, 1986

   Werzalit, which received Urban Development Action Grant (UDAG) funds through a local government, is a contractor within the meaning of the Davis-Bacon provisions of the Bousing and Community Development Act of 1974. The Board rejects Werzalit's contention that it stands in the place of the recipient local government. The statute limits grant recipients to States and units of local government. Therefore, Werzalit's own employees who installed a boiler in its own plant with the assistance of UDAG funds must be paid the Davis-Bacon pre-determined rates.

 

Arbor Hill Rehabilitation Project
WAB Case No. 87-4, November 3, 1987

   The Arbor Hill Project in subject to the Davis-Bacon provisions of section 110 of the Housing and Community Development Act of 1974. It involves the rehabilitation of residential property that Aid designed for residential use for eight or more families. within the meaning of section 110. A majority of the Board concludes that the eight unit threshold in section 110 for application of Davis-Bacon prevailing wage requirements to the rehabilitation of residential property refers to the aggregate number of units in all the buildings being rehabilitated whenever they are commonly owned, will be operated as a single project, and are situated either side-by-side or on contiguous lots.

 

COVERAGE - INCORPORATION BY REFERENCE

 

Progressive Design & Build Inc.
WAB Case No. 87-31, February 21, 1990

   The Board reversed the conclusions of the Administrative Law Judge (1) that the subcontractor was not subject to the Davis-Bacon provisions and not liable for back wages because the labor standards provisions found in the prime contract were not physically included in the subcontract, and (2) that debarment of the subcontractor was not warranted.

   "The subcontracts all contained references to the applicable labor standards provisions, albeit these provisions were marked 'do not apply', and incorporated them by reference into the subcontracts signed between Progressive and Halfway. Even if Halfway did not know what its obligations were under the labor standards provisions, it agreed to abide by these provisions in the subcontracts and cannot be permitted to avoid paying its employees the wages they were entitled to by operation of law by claiming ignorance of the provisions in question. These questions, if they were valid, could easily have been resolved by inquiries directed to the contracting agencies."

 

COVERAGE - LABORERS AND ECHANICS

 

Lee Roy Corely, d/b/a Corley Mechanical Contractor
WAB 78-26, Apri1 6, 1979

   The "working" foreman was entitled to the pipefitter's wage rate for his hours worked instead of a lesser salary.

 

Applicability of the Davis Bacon Act to certain site house employees of equipment dealers under Corps of Engineers contract, Dworshak Dam
WAB 72-4, June 1, 1973

   Employees of three equipment dealers who worked on the Dworshak Dam site in the warehouse space leased from the prime contractor and who performed the same work at the same location as admittedly covered employees, were "laborers and mechanics" protected under the Davis-Bacon Act.

 

COVERAGE - LEASES

 

Military Housing, Fort Drum, N.Y.
WAB Case No. 85-16, August 23, 1985

   An agreement authorized by the Military Construction Authorization Act of 1984 to lease for 20 years family housing units which are to be constructed off the military base is a contract for construction of a public building on work subject to the Davis-Bacon Act.

 

Applicability of Davis-Bacon Act to Lease of Space for Outpatient Clinic, Crown Point, Indiana
WAB Case No. 86-33, June 26, 1987

   The Veterans Administration (VA) solicited bids from private developers to construct a building for it to lease for 15 years with a 5-year option. This agreement in a Contract for construction. as well as a lease. As stated in Military Housing, Fort Drum , WAB No. 85-16, "[I]t has been the traditional position of the Department of Labor that if more than an incidental amount of construction-type activity is involved in the performance of a government contract, the Davis-Bacon Act is applicable to that work."

 

COVERAGE - LOCALITY

 

Wage rates applicable to the construction of Virginia Segment C-7 (Huntington Route) of the Metropolitan Rapid Rail Transit System in Arlington County, Virginia
WAB 71-4, Dec. 7, 1971

   Although the language of the Washington Metropolitan Transit Authority Compact uses the phrase "in the locality" as opposed to the language of the Davis-Bacon Act, referring to the "city, town, village or other civil subdivision of the state in which the work is to be performed, "locality" and "area" simply represent interchangeable descriptions of the city, town, etc.," standard of the Davis-Bacon Act, designating a limited geographical area based on political subdivision boundaries. Therefore, there could be more than one "locality" within the geographical jurisdiction of Metro rapid rail system, and within the meaning of the term "locality" as used in the statutes relating to the Metro construction. The appropriate Locality in this case is thus Arlington County, and not the entire Washington metropolitan area.

 

COVERAGE MAINTENANCE

 

Watertown Housing Authority
WAB Case No. 83-8, March 14, 1983

   The Administrator's determination that a contract funded under the Comprehensive Improvement Assistance Program (CIAP), for cleaning, repainting, and sealing of existing brick walls and the replacement of bricks where needed on two housing projects was maintenance or deferred maintenance, and not "constructions subject to a Davis-Bacon prevailing wage determination, will not be set aside in the absence of demonstrably compelling reasons supplied by the petitioner.

 

COVERAGE - MATERIALMAN

 

Applicability of the Davis-Bacon and Related Acts to Certain Fabrication Activities of Ameron, Inc.
WAB 73-7, Sept. 14, 1973

   Fabrication facilities built near the construction site to manufacture concrete pipe exclusively for use on the federal project is part of the Waite of work. clubfeet to the Davis-Bacon requirements. There is no evidence that the fabrication operation is that of a materialman serving the general public.

 

Midway Excavators, Inc. and King Town Transportation, Inc.
WAB 81-17, Dec. 13, 1983

   When a contractor was utilizing its trued driver employees to haul materials from commercial suppliers to Davis-Bacon covered job sites, the contractor was acting In the place of a Commercial supplier, and therefore the truck drivers were not covered by the labor standards provisions of the Davis-Bacon and related Acts.

 

T.L. James and Company
WAB 69-2, August 13, 1969

   Simply because a company has been a subcontractor on an earlier portion of the job would not alone preclude this company from acting as a materialman on another and distinct section of the project, if acting as such a materialman was independently justified on its own considerations.

 

Applicability of the Davis-Bacon and Related Acts to work performed by Cox Enterprises, Inc.
WAB 72-10, Jan. 29, 1973

   Truck driver employees of Cox Enterprises who hauled fuel oil, road oil and construction equipment from the joint headquarters of Cox Enterprises and Cox Construction Company, prime contractor on the federal projects, to the federal construction sites were laborers and mechanics covered by the Davis-Bacon provisions. Where a material supply firm is owned and operated by the general contractor or a subcontractor construction firm on a government contract, two situations may arise. If the material supply business Is maintained separately from his construction operations, the employees hauling aggregates would not be covered under the Davis-Bacon Act. However, if the contracting and material supply work is Intermingled, then such hauling would be subject to the Davis-Bacon Act in its entirety. Cox Enterprises, organized primarily to provide year-round employment Mr. Cox's key employees, cannot, by simply transferring names of the employees from the Cox Construction Company, Inc., to the Cox Enterprises, Inc. payroll, avoid his contract labor standards obligations. Cox Enterprises was not in the hauling business and did not haul material for anyone other than the Cox Construction Company. Although two corporations were involved, it was one operation with common owners and employees.

 

D.A. Collins Construction Co.
WAB 81-4, September 20, 1984

   An employer which contracted with the prime construction contractor to furnish and deliver stone gravel for the construction contract, and which in turn contracted with the owners of two borrow pits to obtain the stone and gravel requirements, performed the duties of a subcontractor, and not a materialman, and thus was required to pay its employees working at the two borrow pits the Davis-Bacon wage rates. Over 95 percent of the materials drawn from one pit was utilized by the subject federal construction project and related federally assisted projects, and the other pit had had no sales to the public in the prior seven years. The prima facie case created by these facts is not rebutted by the owners' statements that they were willing to make sales to the public, nor by minimal actual sales which cannot be called significant or substantial when compared to the quantities required for Collins' highway project.

 

Applicability of the Davis-Bacon and Related Acts to work performed by Cox Enterprises Inc.
WAB 72-10, Jan. 29, 1973

   Truck driver employees of Cox Enterprises who hauled fuel oil, road oil and construction equipment from the joint headquarters of Cox Enterprises and Cox Construction Company, prime contractor on the federal projects, to the federal construction sites were laborers and mechanics covered by the Davis-Bacon provisions. Where a material supply firm is owned and operated by the general contractor or a subcontractor construction firm on a government contract, two situations may arise. If the material supply business is maintained separately from his construction operations, the employees hauling aggregates would not be covered under the Davis-Bacon Act. However, if the contracting and material supply work is intermingled, then such hauling would be subject to the Davis-Bacon Act in its entirety. Cox Enterprises, organized primarily to provide year-round employment for Mr. Cox's key employees, cannot, by simply transferring the names of the employees from the Cox Construction Company, Inc., to the Cox Enterprises, Inc. payroll, avoid his contract labor standards obligations. Cox Enterprises was not in the hauling business and did not haul material for anyone other than the Cox Construction Company. Although two corporations were involved, it was one operation with common owners and employees.

 

T.L. James and Company
WAB 69-2, August 13, 1969

   Simply because a company has been a subcontractor on an earlier portion of the job would not alone preclude this company from acting as a materialman on another and distinct section of the project, if acting as such a materialman was independently justified on its own considerations.

 

Howard W. Pence, Inc.
WAB 63-14, September 4, 1984

   It was not the intent of the Board to exclude from coverage all truck drivers employed by a construction prime contractor or subcontractor Who haul materials and supplies from a commercial supplier to a Davis-Bacon or related Act covered job site. Only those truck drivers employed by a company that qualifies as a bona flee materialman or truck drivers employed by a firm acting in the place of a commercial supplier are excluded from coverage.

   The Board is of the opinion that the language contained in 29 CFR 55.2(9) which provides in part that ". . . the transporting of materials and supplies to and from the building or work by the employees of the construction contractor or construction subcontractor . . .. is within the meaning of the terms "construction," "prosecution," and "completion," as utilized in the Davis-Bacon and related Acts was intended to cover the situation presented by this case. This firm's operation was primarily to utilize construction employees to transport materials and supplies to its construction site. Certainly while performing this type of operation the firm was not a bona fide materialman nor was it acting in the place of a commercial supplier.

 

Ontario Pipeline, Inc. & Farmington Concrete Products, Inc.
WAB 81-12 & 81-13, January 28, 1985

   Farmington Concrete Products, Inc. was a subcontractor to Ontario and not a materialman. Farmington entered into a contract with Ontario to manufacture and deliver precast concrete manholes for a county-wide sewage system project. Within days of award of the contract to Ontario, Farmington leased a site for 2 years within 10 miles of the project at which to fabricate the manholes. The output of this operation was devoted exclusively, or nearly so, to Ontario's requirements, and this fabrication plant was moved to another site immediately upon completion-of Ontario's requirements for the project. In addition both Ontario and Farmington are owned by one holding company. Employees at the fabrication plant and the truck drivers hauling the manholes to the project were entitled to prevailing wages.

 

Ross Brothers Construction Inc.
WAB Case No. 87-36, November 21, 1988

   The Board affirmed the Administrators ruling that work performed by Umpqua Sand and Gravel at a sand and gravel bar 24 miles from Ross Bros.' highway project was part of the "site of the work" and covered by the Davis-Bacon provisions. Umpqua had obtained a temporary permit from the State of Oregon to use the sand bar only to obtain aggregate for State highway projects. It set up a portable crushing plant at the bar and trucked stone to a storage yard about 1/2 mile from the project.

   Petitioner contended Umpqua was a supplier or materialman, that it had performed two earlier State projects on which it did not pay Davis-Bacon wages, and that prior to starting the project, it relied on an Oregon Dept. of Transportation ruling that Davis-Bacon rates were not applicable to their operation. However, the Board agreed with the Administrator that the inadvertent failure to assert coverage on the two earlier federally assisted State highway projects cannot effect coverage of this project, and the fact that Umpqua's permit was specifically limited to use on State projects (thus inhibiting sale of aggregate to the public) is determinative.

 

COVERAGE - PILOT HOLES

 

CTL Engineering Construction of Relief Well System
WAB 80-7, July 22, 1983

   Where subcontractor received a contract to drill pilot holes, collect core samples, and analyze and submit soil data, and where the Davis-Bacon and Contract Work Sours and Safety Standards labor standards provisions were included in both the pride contract and subcontract, the Assistant Administrator correctly ruled that the pilot holes were Indirectly related and incidental to, and an integral part of the actual construction of a public work. and thus covered by the labor standards provisions.

 

COVERAGE - PUBLIC WORKS

 

Compliance with the labor standards requirements of the Davis-Bacon and Related Acts, Transno 72 Project, Dulles International Airport, Va.
WAB 72-11, Feb. 28, 1973

   A contract to lease, erect and remove prefabricated buildings for use as business centers at the U.S. International Transportation Exposition was subject to Davis-Bacon requirements. Looking at the transaction as a whole, the substantive general conditions applicable to site work on Federally-owned property, the nature of the specifications for site work, the working drawings, and the methods of payment, the Board concluded that the work in question we. a public work of the United States and that the procurement arrangement was a contract for construction subject to the Davis-Bacon Act.

 

CTL Engineering, Construction of Relief Well System
WAB 80-7, July 22, 1983

   Where subcontractor received a contract to drill pilot holes, collect core samples, and analyze and submit soil data, and where the Davis-Bacon and Contract Work Hours and Safety Standards labor standards provisions were included in both the prime contract and subcontract, the Assistant Administrator correctly ruled that the pilot holes were "directly related and incidental to, and an integral part of the actual construction of a public work" and thus covered by the labor standards provisions.

 

Applicability of Davis-Bacon Act to Lease of Space for Outpatient Clinic, Crown Point, Indiana
WAB Case No. 86-33, June 26, 1987

   The Veterans Administration (VA) clinic is a public building. of the United States covered by the Davis-Bacon Act. As in Ft. Drum , WAB No. 85-16, the building is designed for a special purpose and for all practical purposes may never be used as a private building. The Board must follow the Department's definition of "public building" found at 29 CFR 5.2(k). In applying the definition, it is clear the project is being carried on directly by authority of the VA, and it serves the interest of the general public.

 

Military Housing, Fort Drum, N.Y.
WAB Case No. 85-16, August 23, 1985

   An agreement authorized by the Military Construction Authorization Act of 1984 to lease for 20 years family housing units which are to be constructed off the military base is a contract for construction of a public building or work subject to the Davis-Bacon Act.

 

COVERAGE - SITE OF WORK

 

United Construction Company, Inc.
WAB 82-10, January 14, 1983

   There is a prima facie presumption that supporting activities associated with the primary project are covered by the labor standards provisions of the various acts. The Word then looked at the evidence associated with the support activities to judge on a case by case basin whether the activities are sufficiently independent of the primary project to determine that the function of the support activities may be viewed as similar to that of a materialman and therefore not subject to the coverage of the Davis-Bacon Act or related acts.

   Petitioner's asphalt batch plant, which was located 1.8 miles to 55 miles from various construction sites associated with the Truman dam and reservoir project was part of the "site of work," and the work performed at the batch plant, as well as the truck drivers delivering the asphalt to the various construction sites, were covered by the Davis Bacon Act.

 

Mayfair Construction Co.
WAB 81-16, April 18, 1983

   In the instant cane, where damaged acoustical modules were taken from the actual construction site to be repaired at Petitioner's warehouse, 9 miles away, and then returned to site for reinstallation, and where the work being performed at the warehouse was exclusively performed to accomplish this construction activity, this functionalism controls and the warehouse was part of the "site of work" for Davis-Bacon purposes.

 

Big Six, Inc.
WAB 75-3, July 21, 1975

   Employee truck drivers of an independent trucking contractor who hauled bituminous mix from a mix plant at an established commercial quarry to two federal projects were covered by the Davis-Bacon provisions under the facts of this case.

 

Applicability of the Davis-Bacon Act to the quarrying and hauling operations of Sweet Home Stone Company
WAB 75-1 and 75-2, August 14, 1975

   Where an established commercial quarry operator opened three quarries to exclusively supply Federal projects, its employees who were engaged in quarrying, loading, and transporting stone from three quarries to the federal projects were covered by the Davis-Bacon requirements. When a quarry is opened for the exclusive purpose of fulfilling a contract's material requirements, the supplier is considered to have undertaken a part of the construction work of the contract itself and is a subcontractor for purposes of the Davis-Bacon Act.

 

Applicability of the Davis-Bacon and Related Acts to Certain Fabrication Activities of Ameron, Inc.
WAB 73-7, Sept. 14, 1973

   Fabrication facilities built near the construction site to manufacture concrete pipe exclusively for use on the federal project is part of the Site of work. subject to the Davis-Bacon requirements. there is no evidence that the fabrication operation is that of a materialman serving the general public.

 

T.L. James and Company
WAB 69-2, August 13, 1969

   Where but for the contemplated construction of a highway project in the locality, borrow pits or waste areas would not be opened, the opening of such pits or areas primarily in and substantially devoted to the prosecution of the highway work will establish a Paprika facie. case that the work performed in connection with the borrow pits or waste areas as a part of the construction activity of the project, and the employees who do the work are covered. In this regard the concept of The site of work. is a matter of minor or no significance.

 

ABC Paving Co., and ECO Bridge Inc.
WAB Case No. 85-14, September 27, 1985

   A rented warehouse three miles from highway construction project where barrier sound walls were assembled is part of the site of work. Thus, the warehouse assembly workers at the warehouse and the truck drivers who delivered the assembled panels to the job mite were due Davis-Bacon prevailing wages. Petitioner's work at the warehouse was exclusively performed to accomplish construction activity. This functionalism controls the Board's decision on theme facts. The geographic question of three miles distance is only one aspect of the question and under these facts it is not controlling.

 

ATCO Construction, Inc.
WAB Case No. 86-1, August 22, 1986

   Temporary fabrication shop for modular housing units in Portland, Oregon, 3000 miles from Adak Naval Air Station, Alaska, where housing units were to be erected, is part of the site of work for Davis-Bacon purposes. Therefore, Board reversed and remanded a Wage and Hour ruling that the Oregon Rite was not covered. Both functional and geographic tests apply in determining elite of works. Portland, Oregon was an close in the conti- nental United States as Bayou can get to Adak. and the houses were substantially built in Portland and assembled on a concrete slab before shipment to Alaska. Although fabrication is generally not covered by the Davis-Bacon Act, the temporary fabrication framing shop was located in reasonable proximity to actual construction location and therefore was part of the mite of work.

 

Ross Brothers Construction, Inc.
WAB Case No. 87-36, November 21, 1988

   The Board affirmed the Administrator's ruling that work performed by Umpqua Sand and Gravel at a sand and gravel bar 24 miles from Ross Bros.' highway project was part of the "cite of the work" and covered by the Davis-Bacon provisions. Umpqua had obtained a temporary permit from the State of Oregon to use the sand bar only to obtain aggregate for State highway projects. It set up a portable crushing plant at the bar and trucked stone to a storage yard about 1/2 mile from the project.

   Petitioner contended Umpqua was a supplier or materialman, that it had performed two earlier State projects on which it did not pay Davis-Bacon wages, and that prior to starting the project, it relied on an Oregon Dept. of Transportation ruling that Davis-Bacon rates were not applicable to their operation. However, the Board agreed with the Administrator that the inadvertent failure to assert coverage on the two earlier federally assisted State highway projects, cannot effect coverage of this project, and the fact that Umpgua's permit was specifically limited to use on State projects (thus inhibiting sale of aggregate to the public) is determinative.

 

COVERAGE - SUBCONTRACTORS

 

Edwards Furnace Company. Inc.
WAB 77-28, Sept. 18, 1978

   Four carpenters, despite the fact that they bad signed contracts with the contractor and were allegedly subcontractors, were not bona fide subcontractors because none had any prior or subsequent contracting experience, they were being paid hourly wages and one wee receiving fringe benefits they had no office address, or stationery, and the contracts signed by the carpenters indicated that the petitioner agreed to furnish the materials for completion of the project: and the carpenters were to provide only tools and labor. This is the same arrangement that an employer has with an employee. The contracts were a subterfuge to avoid the prevailing wage statutes. The carpenters, therefore, cannot be considered bona fide subcontractors.

 

Applicability of the Davis-Bacon Act to the quarrying and hauling operations of Sweet Rome Stone Company
WAB 75-1 and 75-2, August 14, 1975

   Where an established commercial quarry operator opened three quarries to exclusively supply Federal projects, its employees who were engaged in quarrying, loading, and transporting stone from three quarries to the federal projects were covered by the Davis-Bacon requirements. When a quarry is opened for the exclusive purpose of fulfilling a contract's material requirements, the supplier is considered to have undertaken a part of the construction work of the contract itself and is a subcontractor for purposes of the Davis-Bacon Act.

 

 

Maryland Equipment, Inc.
WAB Case No. 85-24, June 13, 1986

   The Board upheld the ruling of the administrative law judge that Maryland Equipment was a subcontractor subject to Davis-Bacon requirements, not an independent trucker for materialmen, when it performed a specific part of the original contract calling for clearing and disposal of excavated materials. The prime contractor had contracted with BHB Trucking Company to load, haul, and dispose of the excavated materials. BHB Trucking sold the material to Brandywine Sand and Gravel Company and Eco-Rok, Inc., which in turn hired Maryland Equipment, a trucking company, to haul the rock. and gravel from the construction site to Eco- Rok and Brandywine facilities for crushing.

 

Progressive Design & Build Inc.
WAB Case No. 87-31, February 21, 1990

   The Board reversed the conclusions of the Administrative Law Judge (1) that the subcontractor was not subject to the Davis-Bacon provisions and not liable for back wages because the labor standards provisions found in the prime contract were not physically included in the subcontract, and (2) that debarment of the subcontractor was not warranted.

   "The subcontracts all contained references to the applicable labor standards provisions, albeit these provisions were marked "do not apply", and incorporated them by reference into the subcontracts signed between Progressive and Halfway. Even if Halfway did not know what its obligations were under the labor standards provisions, it agreed to abide by these provisions in the subcontracts and cannot be permitted to avoid paying its employees the wages they were entitled to by operation of law by claiming ignorance of the provisions in question. These questions, if they were valid, could easily have been resolved by inquiries directed to the contracting agencies."

 

COVERAGE - TRUCK DRIVERS

 

Bin Six, Inc.
WAB 75-3, July 21, 1975

   Employee truck drivers of an independent trucking contractor who hauled bituminous mix from a mix plant at an established commercial quarry to two federal projects were covered by the Davis-Bacon provisions under the facts of this case.

 

Applicability of the Davis-Bacon and Related Acts to work Performed by Cox Enterprises, Inc.
WAB 72-10, Jan. 29, 1973

   Truck driver employees of Cox Enterprises who hauled fuel oil, road oil ant construction equipment from the joint headquarters of Cox Enterprises and Con Construction Company, prime contractor on the federal projects, to the federal construction sites were laborers and mechanics covered by the Davis-Bacon provisions. Where a material supply firm is owned and operated by the general contractor or a subcontractor construction firm on a government contract, two situations may arise. If the material supply business is maintained separately from his construction operations, the employees hauling aggregates would not be covered under the Davis-Bacon Act. However, if the contracting and material supply work is intermingled, then such hauling would be subject to the Davis-Bacon Act in its entirety. Cox Enterprises, organized primarily to provide year-round employment for Mr. Cox's key employees, cannot, by simply transferring the names of the employees from the Cox Construction Company, Inc., to the Cox Enterprises, Inc. payroll, avoid his contract labor standards obligations. Cox Enterprises was not in the hauling business and did not haul material for anyone other than the Cox Construction Company. Although two corporations were involved, it was one operation with common owners and employees.

 

Midway Excavators, Inc. and King Town Transportation, Inc .
WAB 81-17, Dec. 13, 1983

   When a contractor was utilizing its truck driver employees to haul materials from commercial suppliers to Davis-Bacon covered job sites, the contractor was acting in the place of a commercial supplier, and therefore the truck drivers were not covered by the labor standards provisions of the Davis-Bacon and related Acts.

 

Midway Excavators, Inc. and King Town Transportation Inc.
WAB 81-17, Denial of Motion for Reconsideration, Feb 14, 1984

   The truck drivers of both firms (which functioned as a single employer) while performing trucking services for various third parties, materialmen and suppliers, and so long as the petitioners' truck drivers merely delivered the supplies and performed no other activities, are not covered by the Davis-Bacon and related Acts.

 

ABC Paving Co., and ECO Bridge Inc.
WAB Case No. 85-14, September 27, 1985

   A rented warehouse three miles from highway construction project where barrier sound walls were assembled is part of the site of work. Thus, the warehouse assembly worker. at the warehouse and the truck drivers who delivered the assembled panels to the Job site were due Davis-Bacon prevailing wages. Petitioner's work at the warehouse was exclusively performed to accomplish construction activity. This functionalism controls the Board's decision on these facts. The geographic question of three miles distance is only one aspect of the question and under these facts it is not controlling.

 

Maryland Equipment, Inc.
WAB Case No. 85-24, June 13, 1986

   The Board upheld the ruling of the administrative law judge that Maryland Equipment was a subcontractor subject to Davis-Bacon requirements, not an independent trucker for materialmen, when it performed a specific part of the original contract calling for clearing and disposal of excavated materials. The prime contractor had contracted with BOB Trucking Company to load, haul, and dispose of the excavated materials. BHB Trucking sold the material to Brandywine Sand and Gravel Company and Eco-Rok, Inc., which in turn hired Maryland Equipment, a trucking company, to haul the rocks and gravel from the construction site to Eco-Rok and Brandywine facilities for crushing.

 

COVERAGE-URBAN MASS TRANSPORTATION ACT

 

MARTA Contracts CN-710 & CN-730 and options thereto
WAB 83-9, May 14, 1984

   Where thre will be no Federal monies, grants, aids or otherwise, for any of the disputed work in the segment of track in the Phase C area--the construction of the road bed, the laying of the railroad tracks, the electrical equipment including signals and switches, or any other work--then the Davis-Bacon provisions of the Urban Mass Transportation Act are not applicable. In a subway rail project of this type, segments can be built without the use of Federal funds and in such a case the Davis-Bacon provisions do not have to be included in the contracts.