He then conducted a "limited area practice survey" (LAPS) in accordance with the Wage and Hour Field Operations Handbook (FOH), Chapter 15, Section 15f05(c), to verify that the work was, by local area practice, considered painters' work to be paid at the collectively bargained painters' rates incorporated in the WD. (Peckham at 2107-08; CX 45). The pertinent subsection of the FOH is entitled, "How to conduct a limited area practice survey to determine the proper classification of work." It provides in part: "(1) First, determine whether the applicable WD [wage determination] contains union negotiated rates or open shop (nonunion) rates for the classification at issue." Then,

(2) If the applicable WD reflects union rates for the classifications involved, the unions whose jurisdiction the work may be within should be contacted to determine whether the respective union performed the work in question on similar projects in the county in the period one year prior to the beginning of construction of the project at issue. If so, each union should be asked how the individuals who performed that work were classified. . . . In addition, the information provided by the unions should be confirmed with collective bargaining representatives of management (e.g., contractors' associations such as local chapters . . . ). If all parties agree as to the proper classification for the work in question, the area practice is established.

FOH, Chapter 15, Section 15f05(c)(2).

   In accordance with the FOH, Peckham contacted representatives of the respective unions, the painters, laborers, and carpenters, to inquire which workers performed the work in question on similar projects in the area in the one-year period prior to the beginning of construction on the projects at issue. Peckham contacted a business agent for Painters' District Council 11, Dominick Cieri, and asked him if the painters claimed jurisdiction of "rigging" on bridge painting projects; Cieri said they did. (Peckham at 2027).

   To assist in Peckham's investigation, Painters' District Council 11 sent inquiries concerning which trades performed the work to a number of painting contractors that had performed bridge painting contracts in the year prior to the project he was investigating, and received responses from four of them. (Peckham at 2143-44, 2157-58). A letter from Michael J. Gresh Painting, for example, stated, "On the above noted projects we've employed painters who belong to District Council 11 and have paid them the appropriate wages as stated in the specifications for the projects under the category of ‘Bridge Painting.' At no time did we hire any other ‘laborers' to do any of the work required by our contract." (CX 181).

   Peckham's Wage and Hour investigation, therefore, followed the specific requirements of the FOH for a LAPS. He determined that the WD contained union rates for the painter classification. He consulted with painters', carpenters' and laborers' unions and collective bargaining representatives of management and learned that the parties agreed that the proper classification for the work in question was painter work. Thus, the area practice was established.

   In fact, Wage and Hour exceeded the FOH requirements. Peckham obtained the names of painting contractors and the identity of bridge painting contracts performed in Connecticut from 1991 to 1995, and examined the payroll records for those projects. (Peckham at 2157-59; CX 177, 181, 185-186). He found that, with few exceptions, the contractors had utilized only union painters and apprentices on these projects and had paid them union rates. (Peckham at 2177-81, 2193; CX 209, at 37-41; CX 177, 181, 185-186).

   In the course of its investigation, Wage and Hour also discovered other violations of the DBRA: that Daskal had failed to pay Davis-Bacon prevailing rates for workers performing clean-up work on the ground under two bridges, although these workers were covered by the DBRA because they were "laborers or mechanics," 29 C.F.R. § 5.2(m) (2004), who performed work which was "construction" work under the DBRA, 29 C.F.R. § 5.2(j), "on the site of the work." 29 C.F.R. § 5.2(j)(l)(i); R. D. & O. at 27-31; and that Jewell had falsified its payrolls, and had repeatedly paid its employees for eight hours of unreported overtime at the straight time rate, a violation of the CWHSSA. R. D. & O. at 41-42, 27-31, 71, 78-84. Wage and Hour calculated over $2 million of back pay due for the misclassification and overtime violations. See R. D. & O. at 50-60.

   We consider the following issues in the disposition of this case:

    Whether the record supports the ALJ's findings of fact and conclusions of law notwithstanding his adoption of the Administrator's post-hearing brief.

    Whether the DBRA required the contractors to pay collectively-bargained painters' rates for the bridge painting work at issue.

Whether the contractors violated the DBRA by misclassifying and underpaying employees performing work on bridge painting projects.

   Whether the scope of work clauses in the collective bargaining agreements were ambiguous and did not inform contractors that painters claimed the work.

   Whether the LAPS was inadequate and relieved the contractors of the responsibility of complying with the DBRA.

   Whether "mixed crews" of painters, carpenters and laborers worked on bridge painting projects and local area practice assigned grit collection to laborers.

   Whether the contractors were entitled to make wage classification decisions based on a "tools of the trade analysis."

   Whether a change in containment standards represented new technology not governed by the previous wage classifications.

   Whether the DOL should be estopped from charging misclassification of workers and seeking back pay because the ConnDoT acquiesced in and/or directed the contractors to pay carpenters' and laborers' rates on bridge painting work.

   Whether Daskal workers performing clean up duties on the ground below the bridges were "laborers or mechanics" employed "directly on the site of the work" under the DBA.

   Whether Shipsview and Christos Deligiannidis, and Jewell Painting and Cameron Jewell engaged in aggravated or willful violations of the DBRA that should debar them from obtaining contracts subject to the DBRA for a period not to exceed three years.

    The Board has jurisdiction, inter alia, to hear and decide appeals taken from ALJs' decisions and orders concerning questions of law and fact arising under the DBA and the numerous related Acts which incorporate DBA prevailing wage requirements. See 29 C.F.R. §§ 5.1, 6.34, 7.1(b) (2004).

    In reviewing an ALJ's decision, the Board acts with "all the powers [the Secretary of Labor] would have in making the initial decision . . . ." 5 U.S.C.A. § 557(b) (West 2001). See also 29 C.F.R. § 7.1(d)(2004) ("In considering the matters within the scope of its jurisdiction the Board shall act as the authorized representative of the Secretary of Labor. The Board shall act as fully and finally as might the Secretary of Labor concerning such matters."). Thus, "the Board reviews the ALJ's findings of fact and conclusions of law de novo." Thomas & Sons Bldg. Contractors, Inc., ARB No. 00-050, ALJ No. 96-DBA-37, slip op. at 4 (ARB Aug. 27, 2001), order denying recon., slip op. at 1-2 (ARB Dec. 6, 2001); see also Cody-Zeigler, Inc. v. Administrator, Wage and Hour Div., ARB Nos. 01-014, 01-015, ALJ No. 97-DBA-17, slip op. at 5 (ARB Dec. 19, 2003); Sundex, Ltd. and Joseph J. Bonavire, ARB No. 98-130, slip op. at 4 (Dec. 30, 1999) and cases cited therein.

    In addition, the Board will assess any relevant rulings of the Administrator to determine whether they are consistent with the statute and regulations, and are a reasonable exercise of the discretion delegated to her to implement and enforce the Davis-Bacon Act. Miami Elevator Co., ARB Nos. 98-086/97-145, slip op. at 16 (Apr. 25, 2000), citing Department of the Army, ARB Nos. 98-120/121/122 (Dec. 22, 1999) (under the parallel prevailing wage statute applicable to federal service procurements, the Service Contract Act, 41 U.S.C.A. §§ 351-358 (West 2001)); see also Cody-Zeigler, Inc., slip op. at 5. The Board generally defers to the Administrator as being "in the best position to interpret those rules in the first instance . . . , and absent an interpretation that is unreasonable in some sense or that exhibits an unexplained departure from past determinations, the Board is reluctant to set the Administrator's interpretation aside." Titan IV Mobile Serv. Tower, WAB No. 89-14, slip op. at 7 (May 10, 1991), citing Udall v. Tallman, 380 U.S. 1, 16-17 (1965); see also Cody-Zeigler, Inc., slip op. at 5.

I. Record supports ALJ's findings of fact and conclusions of law notwithstanding his adoption of Administrator's post-hearing brief

   A. & S. argues that, because the ALJ adopted substantial portions of the Administrator's post-hearing brief in as his 92-page R. D. & O., the ALJ "made no attempt at an independent review of the issues involved in this proceeding." Opening Brief of A. & S. and Blast All, Inc. at 4. Although A. & S. notes that the ALJ presided over 49 days of testimony and took notes, it argues that the word-for-word copying of the Administrator's version of the facts and legal arguments reflected a pro-government bias and a lack of independence that deprived the company of due process under the Administrative Procedure Act. Id. at 8-16. See also Opening Brief of George Campbell Painting Corp. and E. Daskal Corp. at 46-47.

    The regulations governing ALJ proceedings under the DBA, DBRA and CWHSSA parallel the requirements of the Administrative Procedure Act, 5 U.S.C.A. §§ 556-557 (West 1996), and provide:

The decision of the Administrative Law Judge shall include findings of fact and conclusions of law, with reasons and bases therefor, upon each material issue of fact, law, or discretion presented in the record. Such decision shall be in accordance with the regulations and rulings contained in part 5 and other pertinent parts of this title. The decision of the Administrative Law Judge shall be based upon consideration of the whole record, . . . It shall be supported by reliable and probative evidence.

29 C.F.R. § 6.33(b)(1).

    On several occasions, the United States Supreme Court has addressed the issue of the effect of the trial judge taking findings verbatim from the prevailing party's brief or requests, and has ruled that they stand if the evidence supports them. In Anderson v. Bessemer City, 470 U.S. 564 (1985), the district judge informed the plaintiff he was ruling in her favor, then asked her counsel to write up and submit findings of fact, which the district judge used in his final decision. The Supreme Court held that the district judge did not use only the submitted findings of fact to reach its decision. The Court also noted, "Nonetheless, our previous discussions of the subject suggest that even when the trial judge adopts proposed findings verbatim, the findings are those of the court and may be reversed only if clearly erroneous." Id. at 572.

   In United States v. El Paso Natural Gas Co., 376 U.S. 651 (1964), the district judge ruled from the bench for the plaintiffs, and then declared he would not write an opinion. Instead, he asked the party's counsel to "[p]repare the findings and conclusions and judgment." Id. at 656. The district court then adopted the submitted findings of fact and conclusions of law verbatim. The Supreme Court held that, while this practice is discouraged, and produces a decision that is much less helpful to the appellate court, "Those findings, though not the product of the workings of the district judge's mind, are formally his; they are not to be rejected out-of-hand, and they will stand if supported by evidence." Id.

   In United States v. Crescent Amusement Co., 323 U.S. 173 (1944), the government sued a line of amusement parks for anti-trust violations under the Sherman Act. The district court ruled for the government, and borrowed its findings from the government briefs. Defendants objected on appeal. The Supreme Court held,

[t]he defendants finally object to the findings on the ground that they were mainly taken verbatim from the government's brief. The findings leave much to be desired in light of the function of the trial court. But they are nonetheless the findings of the District Court. And they must stand or fall depending on whether they are supported by evidence. We think they are.

Id. at 184-85 (internal citations omitted).

    The Second Circuit, where this case arose, applied the Supreme Court test in Counihan v. Allstate Ins. Co., 194 F.3d 357 (2d Cir. 1999). In Counihan the government was attempting to seize certain property. The district court ruled for the government, and adopted certain portions of the government's briefs verbatim, while revising other portions. The property owner objected, and raised the issue on appeal before the Circuit. The Circuit stated,

As a final point of error, Counihan contends that the district court's findings of fact were clearly erroneous because (1) the findings of fact constituted "near-verbatim" or "wholesale" adoptions of the Government's proposed findings. . . . Findings of fact that have been taken verbatim from those proposed by counsel have been criticized; nonetheless, they are not to be rejected out-of-hand, and they will stand if supported by evidence. When a district judge does more than merely adopt a party's proposed findings, the findings issued by the District Court represent the judge's own considered conclusions, which may not be set aside unless clearly erroneous.

Id. at 363 (internal citations and quotations omitted).

   Thus, while the wholesale adoption of the prevailing party's brief is to be discouraged, an ALJ's findings of fact will not be set aside if the evidence supports them. The record in this case consists of a 10,609 page hearing transcript and more than 600 exhibits. Based upon our review, we have concluded that that record supports the ALJ's findings of fact and that his conclusions of law are legally correct. Because of the contractors' concerns about the form of the R. D. & O., we have paid particular attention to the contractors' arguments before us, and tried to respond to them with detailed citations to the record.

II. DBRA required contractors to pay collectively bargained painters' rates for bridge painting work at issue

   The Wage and Hour Division correctly concluded that the painting industry in Connecticut treated bridge painting projects as a single trade job, and therefore utilized only painters. The industry paid painters' wage rates contained in the Connecticut Statewide Bridge Agreement for all tasks associated with bridge painting, including construction of scaffolds and containment structures, and cleanup of lead waste.

   A. Classification of duties under WD must be determined by area practice of unions and signatory contractors

   Under the applicable law, the contractors had to pay prevailing wages in accordance with the way local unions classified the work. Where, as in this case, prevailing wage rates are based upon a collective bargaining agreement, proper classification of duties under the WD must be determined by the area practice of the unions that are party to the agreement. In the leading case, Fry Bros. Corp., WAB No. 76-06 (June 14, 1977), the respondent paid employees as laborers rather than as carpenters. The Wages Appeals Board established that the WDs reflected union rates and found that the disputed work belonged exclusively to carpenters under local practice. It therefore upheld the Secretary of Labor's determination that the respondent's employees were misclassified and underpaid. The Wage Appeals Board wrote,

If a construction contractor who is not bound by the classifications of work at which the majority of employees in the area are working is free to classify or reclassify, grade or subgrade traditional craft work as he wishes, such a contractor can, with respect to wage rates, take almost any job away from the group of contractors and the employees who work for them who have established the locality wage standard. There will be little left to the Davis-Bacon Act. Under the circumstances that the Assistant Secretary determined that the wage determinations that had been issued reflected the prevailing wage in the organized sector it does not make any difference at all what the practice may have been for those contractors who do and pay what they wish. Such a contractor could change his own practice according to what he believed each employee was worth for the work he was doing.

Id. at 17.

   Thus, in DBRA classification cases the rate to be paid for particular tasks is the rate found to be prevailing in the locality for that work, regardless of what tools the workers use. The Wage Appeals Board stated in Volkmann R.R. Builders, WAB No. 94-10 (Aug. 22, 1994):

[T]he appropriate classification for Davis-Bacon work is the classification utilized by firms whose wage rates were determined to be prevailing and were incorporated in the applicable wage determination. In this case, . . . the rates listed in the wage determination reflected collectively bargained wage rates. Therefore, . . . Wage and Hour examined union practice to determine which crafts performed the work in question.

Slip op. at 2 (paraphrasing the Administrator's argument with approval); see also Sentinel Elec. Co., WAB Case No. 82-09, slip op. at 7 (Apr. 5, 1984) ("[T]he results of this area practice survey reveals [sic] that the work of installing low voltage fire alarm systems in the Tucson, Arizona, area, is performed by electricians being paid the rate contained in the applicable wage determination.").

   B. Area practice of unions and signatory contractors was to pay collectively bargained painters' rates for work at issue

   According to the prevailing practice of unionized bridge painters in Connecticut, the work at issue was painters' work and should have been paid at the prevailing wage rate for painters. Accord Fry Bros. Many of the parties Peckham contacted in his Wage and Hour investigation also testified at the hearing. We review the evidence.

   The WD for the Connecticut bridge painting at issue is based on a collective bargaining agreement, the Statewide Bridge Agreement. (Peckham at 2027-29, 2137, 2142, 2758-59, 2840, 2883-84; Murray at 6030-31, 6038-39; Cieri at 6347; CX 142-145).

   Union officials from painters', laborers', and carpenters' unions all testified that work on bridge painting projects in Connecticut fell within the painters' union. Kenneth Murray, Business Representative and Business Manager of District 11, International Union of Painters and Allied Trades, and Dominick Cieri, also a Business Representative with District 11, testified that all work on bridge painting in Connecticut, not just operating blasting and painting guns, fell within the work of the painters' union. (Murray at 6030-31; Cieri at 6347-55).

    Management officials, union bridge painting contractors, and painters testified that bridge painting work was paid at collectively bargained painter rates. Louis Shuman, the Assistant to the President and Director of Labor Relations for Connecticut Construction Industries (CCIA), a contractors' bargaining representative, testified the work at issue was within the jurisdiction of the painters' union. (Shuman at 7340-61). Executives from Laugeni, Connecticut's largest unionized painting contractor, and another smaller Connecticut painting contractor, testified that the work at issue was considered painters' work. (Thomas M. Laugeni at 7452-7641; Greg Laugeni at 10303-82; Thomas G. Laugeni Depo., CX 209; Gene Wambolt at 8800-9017).

   Thus, the only collective bargaining agreement that any employee worked under was the Statewide Bridge Agreement. There was no jurisdictional dispute among unions; no union other than the painters' union claimed bridge painting work. Actual pay practices supported the agreement among unions. Workers were paid painters' rates for tasks performed on bridge painting projects.

Union officials, painting company executives, and painters testified that on union jobs the prevailing practice was to pay painters' rates for "rigging" (which included assembling, moving and disassembling all cables, platforms and containments), grit collection and traffic control. For example, Counsel for the Administrator took the deposition of the elder Thomas G. Laugeni (which was introduced at the hearing because Laugeni was ill and would have been out of town at the time of the hearing). Laugeni was asked at his deposition "on these bridge projects that you did in the ‘90s, after the full containment requirement . . . was implemented, what trade was involved in putting up the scaffolding on your jobs?" Laugeni answered "we've used strictly painters." Counsel for the Administrator continued:

Q. What about the rigging?
A. Strictly painters.
Q. What trade put up the containment barriers?
A. Strictly painters.

(Thomas G. Laugeni Depo., CX 209 at 37).

   The State of Connecticut required all waste produced in blasting old paint off a bridge to be collected, which Laugeni did by use of vacuums and a dust collector that also provided negative air pressure within the containment structure. (Id.) Laugeni was asked, "who operates the dust collector? A. Once you start it, it's usually the painters who will have it . . . running." His examination continued

Q. You also mentioned that you acquired vacuums?
A. Right.
Q. What are vacuums used for?
A. To suck up the grit off of the decks . . . . It's big hoses, six-inch hoses.
Q. And who would operate these vacuums?
A. The painters.
Q. Was this in conformance with the full containment?
A. Yes.

(Id. at 38). (See also Murray at 6032, 6039-40, 6098-99, 6234, 6265: Cieri at 6361-62, 6504; Granell at 7097, 7104: Loubier at 7241; Thomas M. Laugeni (the younger Thomas Laugeni) at 7461-62, 7467, 7496, 7479-80, 7501-04, 7511, 7525, 7531-32, 7557; Wambolt at 8901, 8915, 8920-21, 8933, 8937; Campbell at 9360-66; Thomas G. Laugeni (the elder) Depo., CX 209, at 67; Cecil at 1631; Verity at 221-223; Rowland at 831; Tetreault at 1954-65; Granell at 7105, 7108, 7113; Thomas G. Laugeni at 10328; CX 146).

   Experienced painters testified that they were paid for work associated with bridge painting at collectively bargained painter rates. Robert Mennard testified that union contractors paid him painter rates for blasting, painting, rigging, cleaning up sand, grit and steel shot, scraping old paint, assembling, moving and tearing down containments, and shower time. (Mennard at 97-142). Mark Verity was paid painter rates for rigging pick boards, cables, blasting lines, moving rigging and blasting equipment, sweeping sand, setting up Beeche platforms, traffic control, sweeping and shoveling grit, and showering, even though much of this work involved the use of hand tools not normally associated with painting. (Verity at 185-98, 203-05, 208, 224-30, 242, 324-25).

   No neutral fact witness, i.e., one not affiliated with one of the Respondent contractors, testified that bridge painting was not the sole jurisdiction of the painters' union. There may have been some instances in which certain contractors, either unwittingly or intentionally, paid carpenters' and laborers' wages for the above-mentioned work, ignoring or evading the Statewide Bridge Agreements and the DBRA wage determinations. But the weight of the evidence was that the local area practice in Connecticut was for painters to do all the work, and receive painters' and painters' apprentice wage rates under the Statewide Bridge Agreements on bridge painting projects.

III. Contractors violated the DBRA by misclassifying and underpaying employees performing work on bridge painting projects

   As a result of the foregoing, we find that the contractors here misclassified their workers performing work on DBRA bridge painting projects and paid them at rates lower than the prevailing rates for the painter classification as set forth in the applicable WD. As a consequence, back pay is due for the difference between the wages actually paid and the applicable prevailing wage.

    The ALJ found that it was contrary to Connecticut local area practice (and therefore the DBRA) to pay laborers' and carpenters' rates for the work at issue. R. D. & O. at 18. He found that the Respondent contractors reduced the "prevailing wages in the applicable WDs by reclassifying painters' work into subgrades and then paying employees lower wages for performing tasks which should have been paid at the painter rate" which was "contrary to the principles of Fry Brothers." Id. at 19. Painters were not "tended" (i.e., assisted) in Connecticut by lower paid, unionized employees, as were other crafts like masons and carpenters. Id. at 20.

    None of these contractors had authorization from DOL or ConnDoT to pay less than the painters' rates for any of the work related to the bridge repainting. Instead, they made their own classifications to determine whether their workers should be paid the painters', carpenters' or laborers' rates based on a tools of the trade analysis; e.g., a worker using a blasting hose or spray gun was deemed to be a painter, while one working with wood and a screw gun might be a carpenter. (Svoboda at 8079-80, 8082-8083, 8101-02, 8136-37; CX 211 at 140-42; Jewell at 9963-65, 10073; Bogan at 8243, 8810-11; CX 210, at 180-81). Daskal was alone in claiming that its employees doing clean-up work under the Gold Star bridges were exempt from the DBA. It paid its workers below even the laborer rate for the WD. (CX 219 at 2-4).

    Before September 1994, Campbell paid painters' and painters' apprenticeship rates for employees performing the disputed work. (Mennard at 139-41; Verity at 205, 217-18, 223, 230, 237, 241, 324-25; CX 106). Thereafter, Campbell continued to pay painters' rates for blasting or painting, but entered into a "side bar" agreement with the local painters' union, District Council 11, for new classifications of employees, known variously as "abrasive blast material removers," "material handlers," or "paint sweepers." These employees did grit collection, clean-up, and material handling, and were paid at laborers' rates, plus fringe benefits at painters' rates. (Murray at 6142-44; Cieri at 6384-86; CX 106, 174). The applicable WD had no such classification.

    The ALJ held, citing Van Den Heuvel Elec., Inc., WAB No. 91-03 (Feb. 13, 1991) (agreements between union and contractor to pay lower rates than those specified in an applicable WD invalid as matter of law), that the "side bar" agreement was unenforceable because it authorized payment of wage rates lower than those specified in the wage determination. R. D. & O. at 25-26. We concur in the ALJ's ruling that Campbell's pay practices on the Gold Star project after September 1994 violated the DBRA, id. at 22, 26, and adopt his conclusion that DOL properly computed back wages against Campbell for the reasons stated therein, id. at 54-56, Revised Appendix A.

    Abhe paid painters' rates for blasting or painting and to certain core employees. (Svoboda at 7862, 7906; CX 211 at 90, 176-77, 248-49). However, it paid carpenters' rates for building containments (Svoboda at 7861-62, 7942-43), and laborers' rates for the balance of the work, including decontamination showers. (Crysler at 713, 748; Cecil at 1636; Svoboda at 7827, 7860-64, 7906, 7947, 7970-71, 7975; (Abhe Exhibit (AX) 16; CX 284). Abhe split rates according to tasks. (AX 16; CX 284).

    The ALJ concluded that Abhe violated the DBRA when it failed to pay its employees the prevailing wage for painters performing painters' tasks on the Arrigoni, Mill River, Old Lyme/East Lyme projects. R. D. & O. at 35. He decided that Abhe's tools of the trade analysis resulted in practices that were contrary to local area practice, and that there was a consensus that carpenters and laborers did not tend painters. Id. at 36. We concur in the ALJ's ruling that Abhe's pay practices on the Arrigoni, Mill River, Old Lyme/East Lyme projects violated the DBRA, id. at 31, 40, and adopt his conclusion that DOL properly computed back wages against Abhe for the reasons stated therein, id. at 51-54, Revised Appendix A.

    Jewell also paid painters' rates for actual blasting and painting, but laborers' rates for the rest, including building containments. (Peckham at 4926; Collette at 1757, 1760-61; Justin Tetreault at 1870-71). We concur in the ALJ's ruling that Jewell's pay practices violated the DBRA, R. D. & O. at 41-42, and adopt his conclusion that DOL properly computed back wages against Jewell for the reasons stated therein, id. at 51-54, Revised Appendix A.

   Blast-All likewise paid painters' rates for all employees engaged in blasting and painting, laborers' rates for most other employees, and carpenters' rate for some, but not all, employees who worked with wood and put up tarpaulins. (Strausser at 636-48; Rowland at 831-36, 860-67, 1524-28; Bogan at 8525, 8528-33, CX 51, 53-57; CX 210, at 175-76; CX 233, 285, 287). The ALJ determined that Blast All's use of a tools of the trade analysis resulted in pay practices that were inconsistent with the local area practice in Connecticut, and therefore violated the DBRA. R. D. & O. at 47-48. We concur in the ALJ's ruling and adopt his conclusion that DOL properly computed back wages against Blast All for the reasons stated therein. Id. at 56-57, Revised Appendix A.

    EDT was a non-union company that erected containments and collected spent debris on the Arrigoni project. (Svoboda at 7836-37, 7860, 8212; DiPietro at 4505; RX 34: CX 205). Its workers were paid carpenters' rates for installing containments and laborers' rates for the rest, including showers. (DiPietro at 4506; CX 48; RX 42). We concur in the ALJ's ruling that EDT's pay practices on the Arrigoni project violated the DBRA, R. D. & O. at 40-41, and adopt his conclusion that DOL properly computed back wages against EDT for the reasons stated therein, id. at 51-54, Revised Appendix A.

   Shipsview paid many of its employees less than painters' rates for work performed on the bridge painting contracts, based on its own tools of the trade analysis. (CX 212 at 38-46). However, some Shipsview employees were not paid painters' rates even when they were painting. (Richard Rawlings at 1381-1390). The company employed split and laborers' rates. (CX 212, at 37-38, 53, 161-62). We concur in the ALJ's ruling that Shipsview's pay practices on the subject bridge painting contracts violated the DBRA, R. D. & O. at 48-50, and adopt his conclusion that DOL properly computed back wages against Shipsview for the reasons stated therein, id. at 58-60, Revised Appendix A.

IV. Analysis of bridge painting contractors' arguments

   The Respondent contractors have made a number of arguments in support of their positions. We have considered those arguments, but reject them for the reasons we now discuss.

   A. Contractors' argument that scope of work clauses in collective bargaining agreements were ambiguous and did not inform contractors that painters claimed the work

   A. & S. and Blast All argue that the scope of work clauses in the respective collective bargaining agreements were ambiguous and contractors had no way of knowing that the painters claimed all the work on bridge painting projects. Opening Brief of A. & S. and Blast All, Inc., at 36-37, 52-53.Given Svoboda's years of experience on 500 DBRA covered contracts, we find this contention less than persuasive.Moreover, "Contractors who seek to perform work on a federal construction project subject to the Davis-Bacon Act have an obligation to ‘familiarize themselves with the applicable wage standards contained in the wage determination incorporated into the contract solicitation documents.'" American Bldg. Automation, Inc., ARB No. 00-067, slip op. at 6 (ARB March 30, 2001) (quoting Joe E. Woods, ARB No. 96-127 (Nov. 19, 1996)).

   Furthermore, a examination of the relevant collective bargaining agreements refutes the contractors' position as to containment and collection activities. The Statewide Bridge Agreement stated:

The jurisdiction of work hereinafter set forth and work rules hereto attached shall apply to the maintenance, preparation, cleaning, all blasting (water, sand, etc.), painting or application of any protective coatings of every description on all bridges and appurtenances of highways, roadways, and railroad. All metalizing, containment and collection of sand and other material in the performance of blasting and coating operation, all noise barrier rail, sign mounts, and all other items that require paint or coating on any road, highway, or railroad in the State of Connecticut [sic].

(Loubier at 7288-89).

   The 1920 "agreement" Loubier referred to was a decision by the National Joint Board for the Settlement of Jurisdictional Disputes, Building and Construction Trades Department of the AFL-CIO, rendered on April 28, 1920. A. & S. attempts to imply that the following language from that decision established the jurisdiction of the carpenters over certain scaffold construction, including that connected to bridge painting:

Erection of Scaffolds as Applied to Building Construction

(Subject of dispute between the International Hod Carriers',
Building and Common Laborers' Union, United Brotherhood of Carpenters and Joiners, Operative Plasterers and Cement Finishers' International Association and Bricklayers, Masons and Plasterers' International Union.)

DECISION RENDERED APRIL 28, 1920

In the matter of the dispute between the Laborers, Bricklayers, Plasterers and Carpenters over the erection of scaffolds as applied to building construction, it is agreed that the erection and removal of all scaffolds, including trestles and horses used primarily by Lathers, Plasterers, Bricklayers and Masons, shall be done by the mechanics and laborers in these trades as directed by the employer. Self-supporting scaffolds over fourteen feet in height or any special designed scaffolds or those built for special purposes shall be built by the Carpenters. The making of horses and trestles other than temporary is the work of the Carpenter.

See Opening Brief of A. & S. and Blast All, Inc., at 31.

   It is evident that the 1920 agreement did not relate to painters. Loubier's testimony refutes the position of A & S and Blast All on this point. Indeed, it is difficult to believe that highly experienced contractors such as A. & S. or Blast All could reasonably have believed, given this decades old understanding, that carpenters built scaffolds and containment structures for painters. Loubier explained why carpenters, and other trades, do not "tend" painters, that is, perform work necessary in the preparation, execution, or clean up of painting jobs:

Q. And what were the carpenters doing while the painting was occurring?
A. Carpenter work.
Q. And could you please explain specifically what you mean.
A. We'll take I-91, lane construction. We do a section of sound barrier. And as we progress down the road, because there's miles of sound barrier, after we got a section completed and the weather was right, the painting contractor came in and sprayed the sound barrier that was put up. If we finished the bridge and all of the forms were taken down, the painting contractor was then able to go in and paint the steel on the bottom underneath of the bridge. So the carpenter would be at another junction or another spot on the job working while the painter was doing his work, because we don't work when the painter's painting. We're in the way. So most of the trades are out of the way when the painter does his job. So we might be on the same job, but just not at that section of the job while he's painting.

(Loubier at 7229). Loubier told Peckham "we've never built a scaffold for

the painting contractors. They built their own with the painters." (Loubier at7223). Loubier also gave the following responses to questions by the Administrator's counsel:

(Loubier at 7232; see also Loubier at 7237 (same)).

   A. & S. introduced numerous exhibits intended to show that painters, carpenters and laborers worked on the same projects, implying that carpenters and laborers worked on painting-related aspects of those projects. Loubier's testimony also refutes that assertion. He testified about numerous general contractors that had reached a collective bargaining agreement with the carpenters through the CCIA and for which union carpenters had done work, including Arborio Corporation; Baier Construction; Blakeslee, Arpaia, Chapman, Inc.; and Brunalli Construction. (Loubier at 7237-41).With respect to building scaffolds or platforms for painters, Loubier said

On the projects that I've watched as a business agent, I don't know of any scaffolds that we've built for the painters. And my recollection is that painters did their own if they needed a scaffold, or they worked off a scissor lift truck or scissor lift platform where they operated it themselves.

(Loubier at 7241).

   B. Contractors' argument that limited area practice survey was inadequate

   The Respondent contractors charge that the limited area practice survey was inadequate, but this is in reality a collateral attack on the prevailing wage rates. The WD had already been issued and used in the bidding process. R. D. & O. at 31. If contractors wish to protest the use of union wage rates as prevailing, it must be at the wage determination stage, before the award of the contract, and not at the enforcement stage. Clark Mech. Contractors, Inc., WAB No. 95-03 (Sept. 29, 1995); Fry Bros., slip op. at 17.

   As the ALJ pointed out, the LAPS was not used to establish wage rates, but rather as an investigatory tool in the compliance investigation to verify information the investigator received from union and other representatives. R. D. & O. at 39. The number, nature and timing of the projects surveyed in the LAPS is not a significant issue. Id. at 31.Even if inadequate, the LAPS did not relieve the Respondent contractors of their responsibility to comply with the DBRA. Id. at 39. The legally controlling issue is whether painters' rates had to be paid for all work performed on the bridge painting projects. Id. at 30, 37-38.

   A. & S. asserts it was error for Wage and Hour (as well as the ALJ) to refuse to consider assignments of work by union contractors to non-union employees as evidence of local area practice. A. & S. argues that "[i]t was Complainant's burden to show that there was a uniform agreement between the crafts that only painters should do the collection and containment work on these projects. The DOL did not carry its burden to show that only painters built containments and shoveled grit in Connecticut. " A. & S. Opening Brief at 53-54.

   A. & S. misunderstands the "prevailing wage" concept in the DBRA. Prevailing wage is not synonymous with "universal" or "uniform." The regulations clearly state "[t]he prevailing wage shall be the wage paid to the majority (more than 50 percent) of the laborers or mechanics in the classification on similar projects in the area during the period in question." 29 C.F.R. § 1.2(a)(1)(2003). Furthermore, as discussed above, under the FOH, when questions arise as to the proper classification for the work performed by a laborer or mechanic, Wage and Hour first conducts a "limited area practice survey." FOH, § 15f05(b). There is no question here that the WD contains union negotiated rates. See discussion above of notation "PAIN0011C." In such circumstance, the FOH directs that the unions within whose jurisdiction the work may be should be contacted to determine whether the respective union performed the work in question on similar projects in the county. If so, each union should be asked how the individuals who performed the work were classified. In addition, the information provided by the unions should be confirmed by the collective bargaining representative of management. Id. at § 15f05(c)(2).

   For example, Blast All had signed the Statewide Bridge Agreement and Steve Bogan, chief of operations for Blast All, attended the negotiation session on the renewal of the agreement with the painters' union in 1995. Bogan did not object at that meeting to editing of the scope of work clause to clarify that constructing scaffolds and containment structures were covered by the agreement and were painters' work. But thereafter, he refused to sign the agreement and began assigning carpenters to such work on bridge painting jobs, as well as assigning laborers to grit collection, and paying them the respective carpenters' and laborers' rates. (Bogan Depo., CX 210 at 254; Bogan at 8424, 8430-37; Murray at 6129-30; Cieri at 6373). As the Wage Appeals Board said in Fry Bros.,

If a construction contractor who is not bound by the classifications of work at which the majority of employees in the area are working is free to classify or reclassify, grade or subgrade traditional craft work as he wishes, such a contractor can, with respect to wage rates, take almost any job away from the group of contractors and the employees who work for them who have established the locality wage standard.

Fry Bros., slip op. at 17.

   C. Contractors' arguments that "mixed crews" of painters, carpenters and laborers worked on same bridge construction projects and that local area practice assigned grit collection to laborers

Q. And what is your understanding as to what work the laborers do on bridge building or bridge rehab projects?
A. Well, if you're talking about the entire bridge project, the laborers participate in a great many phases of the work. It's heavy construction. So they participate in the digging of the foundation for the piers, or maybe even start before that. They participate in clearing the site, if it's a new bridge. They participate in the demolition of the old bridge. They unload materials brought to the site. They pour concrete into forms for the piers of the bridge and for the outlying parts of the bridge. . . .
Q. What is your understanding as to what type of work laborers do on a bridge painting project, what union laborers would do on bridge painting projects?
A. As far as I know, they don't participate in bridge painting projects.
Q. Do you have any understanding as to why laborers, union laborers need lead abatement training?
A. Oh, they do lead abatement work. The most – the biggest exposure of a laborer to lead is the demolition of an existing structure, because of the use of the lead paint to preserve steel members, you run into lead taking down the old structure. And they have to be very aware of the presence of lead, and take steps to reduce their personal exposure to the lead.

(Shuman at 7418-19).

   The respondent contractors cite several documents in the record as well as portions of the testimony in support of their argument that local area practice routinely included assignment of grit collection to laborers or other similarly titled workers. For example, on September 9, 1994, the Painters' Union and Campbell Painting entered into the "sidebar" agreement "establishing" a new worker classification of "Abrasive Blast Material Remover" for the Gold Star Bridge Project. (CX 174). A. & S., as well as Campbell and Daskal, point to that agreement as evidence that contractors routinely assigned grit collection work to laborers or similarly titled workers at lessthan the painter's wage in the wage determinations, without objection by the Painters' Union. Opening Brief of A. & S. and Blast All, Inc., at 25-28, 46-49;Opening Brief of Campbell and Daskal, at 22-23. Campbellmaintained that, because the Painter's Union was unable to supply enough apprentices (to whom grit collection usually was assigned) for the Gold Star project, the company requested that the Painter's Union for the establish of a new classification to meet Campbell's need for workers performing those tasks. (Murray at 6142-44; Cieri at 6384-86; CX 173). Contrary to Respondent contractors' assertion, if anything, this "side-bar" agreement tends to show that this work was routinely claimed by and assigned to painters. Such a "side-bar" agreement would not have been necessary if grit collection work had been routinely assigned to laborers without objection by the Painters' Union.

   D. Contractors' argument that they were entitled to make wage classification decisions based on "tools of the trade" analysis

    Abhe contends that its "tools of the trade" analysis should govern wages for bridge painting, rather than union classification and pay practices prevailing in the locality where the work was performed. Opening Brief of A. & S. and Blast All, Inc., at 17-19, 50.We disagree.

    Counsel for A. & S. asked how A. & S. determined what wages it would use to calculate the amount of its bid: "Q. Okay. How do you determine during this bidding process what craft group you will use on a particular job?" (Paul Lusky at 7800). Svoboda said,

We establish and determine the wages that are going to be paid to employees, the minimum wages that are going to be paid to employees, by the tools of the trade method. Whatever tools those employees will use in their work that is required for that work, that's the minimum wage that's to be paid to those employees.

(Svoboda at 7800).

    On their projects, A. & S. and Blast All paid various crafts, including painters, laborers and carpenters, using a "tools of the trade" analysis. The contractors paid a laborers' rate to employees who performed grit collection, grit clean-up, assembly, moving and dismantling of containment work structures and traffic control because clean-up work using brooms, shovels and vacuums was historically laborers' work and fell within the written craft jurisdictional language of the local laborers' union. Opening Brief of A. & S. and Blast All, at 17. Similarly, A. & S. and Blast All paid carpenters' rates to employees performing construction of wood airlocks, bulkheads, walls and platforms on bridge projects. Id.

   We reject A. & S. and Blast All's arguments for a "tools of the trade" analysis in making wage determinations. Since there is no generally accepted agreement as to which "tools" belong to which "trade," allowing contractors to make their own decisions would lead to inconsistent results. For example, Abhe paid employees holding blasting guns the painter rate (Svoboda at 7862), while Shipsview paid them the laborer rate. (Deligiannidis Depo., CX 212, at 52-53).

   A. & S. and Blast All assert that a contractor should be able to use a classification included in bid documents as long as it falls within a craft jurisdiction set forth in the local collective bargaining agreement. They claim that they had no way of knowing that laborers could not be used to perform the work called for in the contract. Opening Brief of A. & S. and Blast All, at 17. However, the inclusion of a job classification on a wage determination (e.g., laborer) does not necessarily mean it is applicable to a particular contract (i.e., for bridge painting). As we have said, it was incumbent upon the respondent contractors to go beyond the list of job classifications on the wage determination to ascertain the actual local area practice. American Bldg. Automation, Inc., slip op. at 4-5.

   Although Svoboda professed to be fully conversant with DBRA, wage determinations and the concept of prevailing wages (Svoboda at7799-7800), having worked on about 500 prevailing wage jobs (Svoboda at7794), he failed to accept the actual governing principle in DBRA classification cases: the rate to be paid for particular tasks is the rate found to be prevailing in the locality for that work, regardless of which tools the workers were using. Fry Bros.; Volkmann R.R. Builders; Sentinel Elec. Co.

   E. Contractors' argument that change in containment standards represented new technology not governed by previous wage classifications

(Thomas M. Laugeni at 7459-60).

   A. & S. cites the testimony of Laugeni in support of its argument that there was an advent of new technology in the 90s. Opening Brief of A. & S. and Blast All, Inc. at 65. A. & S. argues that this was a "dramatic" change in technology on bridge painting projects that justified a new work classification and made Peckham's limited area practice survey outdated. Opening Brief of A. & S. and Blast All, Inc., at 67-69.

   But A. & S. does not cite the rest of Laugeni's testimony in which he described the very "Beeche" platforms on which A. & S. placed considerable emphasis as being drastically different technology. Laugeni first used Beeche platforms on a bridge painting project in Bridgeport, Connecticut on which Brennan Construction was the general contractor. (Thomas M. Laugeni at7460-61). Laugeni described the Beeche platform and then was asked

Q. [W]ho performed the work of erecting the containment on that Bridgeport project?
A. A. Laugeni and Son.
Q. And which particular trades did the work?
A. Painters.

(Thomas M. Laugeni at 7466).

   When Laugeni explained that there was blasting and collection of grit on that project; counsel for the Administrator asked "Q. [w]ho performed that job [collection of grit] in terms of which trade? A. The painters." Laugeni further testified that, on a large bridge painting contract covering six or seven bridges, which had been awarded to A. & S., painting work on three of the bridges was subcontracted to Laugeni and Son. The work involved abrasive blasting, collection and full containment and applying three coats of paint. All the work was done by painters, including vacuum collection of grit. (Thomas M. Laugeniat 7466-67).

   F. Contractors' argument that DOL should be estopped from charging misclassification of workers and seeking back pay because ConnDoT acquiesced in and/or directed contractors to pay carpenters' and laborers' rates on bridge painting work

Opening Brief of A. & S. and Blast All, Inc., at 82 (citations omitted). A. & S. also points out that ConnDoT required them to pay laborer rates for shower time. Id. at 39, 83. See also Opening Brief of Campbell Daskal, at 42-46.

   Whether or not ConnDoT engaged in "affirmative misconduct" misses the point. The Department of Labor cannot be estopped by the actions of a contracting agency. To begin with, estoppel is rarely, if ever, granted against the federal government, although the Supreme Court in Heckler v. Community Health Serv., 467 U.S. 51, 59 (1984), did not rule it out entirely. The standards for granting estoppel against the Department of Labor have not by any means been met here.

   Estoppel can only be invoked against the government when the government agency has engaged in some affirmative misconduct,

which is something more than simple negligence. Dantran Inc. v. United States Dep't of Labor, 171 F.3d 58, 67 (1st Cir. 1999). Furthermore, estoppel will only lie "if it would ‘not frustrate the purpose of the statutes expressing the will of Congress.' . . . This type of holding extends to legal requirements fixed by duly promulgated regulations." Id. (quoting FDIC v. Hulsey, 22 F.3d 1472, 1489 (10th Cir. 1994)). Moreover, as the Wage Appeals Board said in L.T.G. Constr. Co., WAB Case No. 93-15 (Dec. 30, 1994):

It is well settled law that the mistakes of one agency cannot be used to estop another agency from carrying out its statutory responsibilities. U.S. v. Stewart, 311 U.S. 60 (1940) and Graff v. C.I.R., 673 F.2d. 784 (5th Cir. 1982). DOL is charged with the responsibility of assuring that workers on federally financed or assisted construction projects are not exploited and receive the prevailing wages to which they are statutorily entitled. To invoke estoppel against DOL to defeat a legitimate claim for back wages on behalf of aggrieved workers may be a legal impossibility (see Heckler v. Community Health Services of Crawford County, Inc., 457 U.S. 51 (1984)), but even if were not, it would require at a minimum a compelling demonstration of conscious and aggravated misconduct on the part of DOL.

Slip op. at 6 (emphasis added).

   L.T.G. was reversed and remanded for further fact finding in Griffin v. Reich, 956 F. Supp. 98, 100 (D.R.I. 1997), where the district court held that, in appropriate circumstances, estoppel would lie against the government. The court ordered reconsideration of whether L.T.G. met all the elements of estoppel, including reasonable reliance on representations by HUD, the "contracting" agency in that case. The district court distinguished cases the WAB cited for the proposition that the mistakes of one agency cannot be used to estop another. 956 F. Supp at 108. It held that "the regulatory and statutory scheme [DBRA] expressly contemplates that HUD, the contracting agency, has authority to monitor compliance with labor standards provisions." Id. After remand and reconsideration of the facts by a different ALJ, the Administrative Review Board held that LTG could not invoke estoppel because the contractor did not show he had actually complied with HUD's guidance. Lloyd T. Griffin v. Sec'y of Labor, ARB Nos. 00-032, -033, ALJ No. 91-DBA-94 (ARB May 30, 2003).

   As other cases have made clear, however, only the Secretary of Labor or her delegee, the Administrator of the Wage and Hour Division, has the authority to interpret the Davis-Bacon Act; any other approach would lead to widely varying applications of the Act from contracting agency to contracting agency. As stated by the Wage Appeals Board:

This Board has rejected estoppel argu[ment]s that a petitioner's reliance upon the advice of the contracting agency as to the appropriate wage rate operates to relieve petitioner of its responsibility to pay the proper wage rate to laborers and mechanics employed on the project. The Secretary of Labor was given the power to regulate the interpretation and enforcement of the Davis-Bacon and related acts by Reorganization Plan No. 14 of 1950. This authority has been reinforced by two opinions of the Attorney General of the United States. Sentinel Electric Company, WAB Case No. 82-09 (April 5, 1984). See also Jos. J. Brunetti Construction Co. and Dorson Electric and Supply Co., Inc., WAB Case No. 80-09 (Nov. 18, 1982), Metropolitan Rehabilitation Corp., WAB Case No. 78-25, (Aug. 2, 1979) and Tollefson Plumbing and Heating Co., WAB Case No. 78-17, (Sept. 24, 1979).

Prometheus Dev. Co., WAB No. 81-02 and 81-03, slip op. at 9 (Aug. 19, 1985) (alterations in original) (quoting Warren Oliver Co., WAB No. 84-08 (Nov. 20, 1984)).

   The courts have also rejected A. & S.'s position. In Dantran, Inc. v. United States Dep't of Labor, 171 F. 3d 58, 66 (1st Cir. 1999), the First Circuit observed that:

Estoppel against the government is a concept more frequently discussed than applied. While the Supreme Court has never definitively ruled out the possibility of an estoppel against the government, it consistently has emphasized the difficulties that such a concept entails. See, e.g., OPM v. Richmond, 496 U.S. 414, 419-20, 423, 110 S.Ct. 2465, 110 L.Ed.2d 387 (1990) (plurality op.); Heckler v. Community Health Servs., 467 U.S. 51, 60-61, 104 S.Ct. 2218, 81 L.Ed.2d 42 (1984). If estoppel against the government possesses any viability (a matter on which we take no view), the phenomenon occurs only in the most extreme circumstances.

171 F.3d at 66. Wage and Hour had cited Dantran for paying its employees on a monthly, rather than a bi-monthly basis, on Postal Service contracts that the Service Contract Act covered. Wage and Hour had actually reviewed Dantran a few years prior to the investigation in which a violation was found, and that investigation had found no violations, although Dantran was using the same pay practices then. Officials of the Postal Service also had made statements to Dantran indicating its practices were acceptable.

   In rejecting Dantran's claim of estoppel, the court said "[w]e cannot in good conscience accept a broad rule that prevents the sovereign from enforcing valid laws for no better reason than that a government official has performed his enforcement duties negligently." Id. The First Circuit explained further that "estoppel, if available at all, would only succeed if it would ‘not frustrate the purpose of the statutes expressing the will of Congress.' This type of holding extends to legal requirements fixed by duly promulgated regulations." Id. at 67 (citations omitted). In discussing what conduct, beyond simple negligence, might support estoppel, the court said that the first compliance officer's clean bill of health for Dantran was not issued with the intent to mislead them about their responsibilities. It concluded, "[in] a nutshell, there is not the slightest whiff of affirmative misconduct." Id.

V. Daskal workers performing clean up duties on the ground below the bridges were "laborers or mechanics" employed "directly on the site of the work" under the DBA

   We now consider the argument of Daskal, Campbell's subcontractor, that its employees who performed clean-up work under the Gold Star project were not subject to the DBA. Opening Brief of Campbell and Daskal, at 31-42.

   Daskal contends that its employees engaged in the tasks of maintenance, not covered by DBA, such as clean up of lunch areas after coffee breaks and meal times; site preparation and restoration services; hauling general trash (not hazardous waste); running errands to pick up supplies and hardware; and operating a safety boat. Daskal claims that many of these tasks are not "construction activity," other tasks, such as delivering supplies, are performed "off-site" and therefore not covered under Ball, Ball and Brosamer, 24 F.3d 1447, 1453 (D.C. Cir. 1994), and that Daskal had no notice of coverage of safety boat operators because the relevant page was missing from the wage determination provided to it by ConnDoT. Further, Daskal's maintenance and supply shop was located in New London, Connecticut, not adjacent to the bridge project. (Morris at 9637-38). Daskal asserts much of the work time of its employees was spent in that shop and in running errands. Opening Brief of Campbell and Daskal, at 38-39.

   In contrast, the Administrator argues that the Daskal workers were laborers or mechanics employed directly on the site of the work and so subject to the DBA. Opening Brief of the Administrator, at 47-50.

    Our analysis begins with the DBA, the regulation, and pertinent case law. The DBA, 40 U.S.C.A. § 3141 (West Supp. 2003), provides that mechanics and laborers "employed directly on the site of the work" shall be paid local prevailing wage rates as determined by the Secretary of Labor. The regulations applicable at the time stated that:

(1) The site of the work is limited to the physical place or places where the construction called for in the contract will remain when work on it has been completed and . . . other adjacent or nearby property used by contractor or subcontractor in such construction which can reasonably be said to be included in the site.

(2) Except as provided in paragraph (l)(3) of this section, fabrication plants, mobile factories, batch plants, borrow pits, job headquarters, tool yards, etc. are part of the site of the work provided they are dedicated exclusively, or nearly so, to performance of the contract or project, and are so located in proximity to the actual construction location that it would be reasonable to include them.

    In the leading case on interpretation of the statutory phrase "site of the work," Ball, Ball & Brosamer, Inc. v. Reich, 24 F.3d 1447, 1452 (D.C. Cir. 1994), the D.C. Circuit held that the term did not apply to workers in borrow pits and batch plants located two miles from the construction site. The ARB has interpreted Ball, Ball & Brosamer, Inc. to permit coverage of workers working at "temporary batch plants on land integrated into the work area adjacent to the pumping plants [for an aqueduct.]" Bechtel Constructors Corp., ARB No. 95-045A, ALJ No. 91-DBA-37 (ARB July 15, 1996).

   We now turn to the evidence. Peckham's report of investigation states "[t]he interviews [of Daskal employees whose names, with one exception, had been redacted] . . . establish that the work was on-site, with negligible off-site errands . . . ." (RX 11a). The interviews included the following statements:

• "He [the interviewee] had been working under the . . . bridge doing general labor. All of his work was on-site. They did go back and forth from the warehouse, but the warehouse was right under the bridge. He used a forklift to move [illegible] of paint [,] barrels of waste around the site. He mixed paint [, and] worked along with the painters when they were on the ground. They handled anything coming off the bridge. They took the bags of hazardous waste to the hazardous waste storage place . . . ." (RX 12).

• "Most of his time was spent cleaning up under the bridge, making sure the area below the bridge was clear. [He] brought materials on the site. They brought paint brushes, [and] parts for equipment. As barrels got full of waste, they stored them. . . . All this work was on[-]site." (RX 13).

• "[M]ain duties were removing barrels of lead-contaminated stuff up to the containment area, working around the ground equipment, removing and placing hoses, [and] doing general clean up around the work area. The work was all on[-]site, under the bridge. . . . A large part of his work involved the contaminated waste. He took over where the apprentices left off. They took what was coming off the machines and what they swept up, put it in plastic bags, put the bagsin barrels . . . . Once a week, they made a run off-site with the empty paint cans. . . . .The off-site run was about an hour a week. . . . It was part of their job to clean the lunch area, but if the company was saying that was one of their main jobs, that's wrong." (RX 14).

• "His work was general laborer. Mostly he was doing general clean up on the ground, handling materials that came off the bridge, cleaning up around the machinery. It was on-site work, working under the bridge. He handled bags of hazardous waste, brought them to the drop-off point. He brought buckets of paint to the paint trucks . . . sometimes helped mix it . . . . Over 90% of his hours were on-site . . . . Once the bags [of grit] were in the barrels, it was Daskal people who capped the barrels, put them on pallets, [and] used the forklift to get them to the contaminated area. Daskal people also dealt with other contaminated, spent materials. They bagged things like the filters, brought them to the contaminated ‘containment area.' They wore respirators when handling any of this stuff." (RX 15, Statement of Anthony Green).

Green's testimony at the hearing confirmed his statement given to Peckham. (See Green at 499-505). It is clear that most of the Daskal employees' work was performed on the site of the bridge painting jobs, that is, directly under the bridges. The question remains whether the nature of the work was related to bridge painting, i.e., clean up of grit and debris.

   There appears to be a direct conflict between the testimony of these employees and that of Peter Morris, General Superintendent and Vice President of Campbell Painting, who insisted that Daskal employees never performed any tasks related to contaminated material. (Morris at 9747).We credit the employees' testimony over that of Morris for the following reasons:

   First, it is difficult to believe that all these employees would misstate their duties and that these misstatements would parallel each other. Second, Morris testified that he knew the Daskal employees could not have performed tasks related to contaminated material because there were 12 to 14 KTA inspectors on-site who monitored all activity to insure compliance with environmental rules. (Morris at 9747). But on cross-examination, Morris conceded that Daskal employees probably wore respirators and protective coveralls. (Morris at 9750). Counsel for the Administrator asked, "If you had Daskal people wearing masks, and coveralls, and the same helmets as your Campbell people, how would the KTA inspector know whether it was a Daskal person or a Campbell person?" Morris answered "It didn't matter to me what a KTA inspector knew other than whether I got paid or not, it's what I knew that was really important to me." (Morris at 9750-51). This appears to be evasiveand raises the question how Morris could know what occurred every day on-site.

   Third, when confronted with Green's testimony that it was wrong to say a major part of the job of the Daskal employees was to clean up the lunch area, Morris testified that it took several hours a day because there were several shifts starting at different times and each had a coffee break and lunch period. (Morris at 9758-59). Nevertheless, it is difficult to believe that these duties took several hours a day for all Daskal employees. Accordingly, we reject Daskal's argument that its employees were not "laborers or mechanics" within the meaning of DBA.

   Finally, with regard to the operators of safety boats that patrolled under the bridges, we agree with the Administrator and the ALJ that Daskal was required to pay them at least the federal prevailing wage rate for "power safety boat operators." (CX 292.) See R. D. & O. at 29-30. That a page containing this wage determination was missing from the contract documents does not excuse that obligation. Id.

   We thus concur in the ALJ's ruling that Daskal's pay practices violated the DBA, R. D. & O. at 27-31, and adopt his conclusions with regard to back wages against Daskal for the reasons stated therein, id. at 54-56, Revised Appendix A.

VI. Shipsview and Christos Deligiannidis, and Jewell Painting and Cameron Jewell engaged in aggravated or willful violations of DBRA and should be debarred from obtaining contracts subject to the DBRA

    A. The legal standard for debarment

    In addition to the provisions requiring payment of prevailing wages, the further sanction of debarment for violation of the DBRA is provided for in the regulations, i.e., placement of certain violators' names on a list of persons and firms ineligible to receive federal contracts and subcontracts for a period not to exceed three years. Debarment for violation of the DBRA is governed by 29 C.F.R. § 5.12 (2004), which provides in Section 5.12(a)(1):

Whenever any contractor or subcontractor is found by the Secretary of Labor to be in aggravated or willful violation of the labor standards provisions of any of the applicable statutes … other than the Davis-Bacon Act, such contractor or subcontractor or any firm, corporation, partnership, or association in which such contractor or subcontractor has a substantial interest shall be ineligible for a period not to exceed 3 years (from the date of publication by the Comptroller General of the name or names of said contractor or subcontractor on the ineligible list...) to receive any contracts or subcontracts subject to [the Davis-Bacon Act or Related Acts].

29 C.F.R. § 5.12(a)(1).

    As noted in Gaines Elec. Serv. Co., Inc., WAB No. 87-48, slip op. at 4 (Feb. 12, 1991), the Supreme Court has observed that "in common usage the word ‘willful' is considered synonymous with such words as ‘voluntary,' ‘deliberate,' and ‘intentional.'" See McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133 (1988). The term "willful," the Court added, "is widely used in the law, and although it has not by any means been given a perfectly consistent interpretation, it is generally understood to refer to conduct that is not merely negligent." Id. Furthermore, in A. Vento Constr., WAB No. 87-51, slip op. at 7 (Oct. 17, 1990), the WAB noted that the "aggravated or willful" standard "has not been expanded to encompass merely inadvertent or negligent behavior. Instead, the actions typically found to be ‘aggravated or willful' seem to meet the literal definition of those terms -- intentional, deliberate, knowing violations of the labor standards provisions of the Related Acts." (footnotes omitted).

    Under established law, a "willful" violation "encompass[es] intentional disregard, or plain indifference to the statutory requirements. . . . Although mere inadvertent or negligent conduct would not warrant debarment, conduct which evidences an intent to evade or a purposeful lack of attention to, [sic] a statutory responsibility does. Blissful ignorance is no defense to debarment." LTG Constr. Co., WAB No. 93-15, slip op. at 7 (Dec. 30, 1994) (citations omitted); see also Cody-Zeigler, Inc., slip op. at 31; Fontaine Bros., Inc., ARB No. 96-162, ALJ No. 94-DBA-48, slip op. at 3 (ARB Sept. 16, 1997).

   Underpayment of prevailing wages coupled with the submission of falsified certified payrolls that masks the underpayments constitutes willful violation of the DBRA and warrants debarment. Hugo Reforestation, ARB No. 99-003, ALJ No. 97-SCA 20, slip op. at 3 (ARB Apr. 30, 2001); Gaines Elec. Serv. Co., slip op. at 4; A. Vento Constr, slip op. at 7, n.4; Sundex, Ltd., and Joseph J. Bonavire, ARB No. 98-130, ALJ No. 94-DBA-58 (ARB Dec. 30, 1999).

    The Board has consistently and lawfully debarred responsible individual corporate officers in DBRA cases. See Facchiano Constr. Corp. v. United States Dep't of Labor, 987 F.2d 106, 213-14 (3d Cir. 1993) (affirming authority of Board to debar responsible officers); Janik Paving & Constr., Inc. v. Brock, 828 F.2d 84, 86 (2d Cir. 1987) (same). See also Fontaine Bros., Inc., slip op. at 3 (president was actively involved in corporate matters and ran the company with his son).

   B. Shipsview and Christos Deligiannidis subject to debarment

   We apply the debarment rules to Shipsview and Christos Deligiannidis. There is ample record support for the ALJ's findings, see R. D. & O., slip op. at 71-78, and we adopt and summarize them here. The DBRA required Shipsview, under penalty of perjury, to submit true and accurate, certified payrolls. Deligiannidis testified that they were accurate. (Deligiannidis Depo., CX 212, at 132). However, numerous Shipsview employees testified that Shipsview regularly paid employees for fewer hours than they actually worked and/or paid employees straight time for overtime hours (e.g. Floyd Andrews at 984; Richard Flynn at 1424-26; Edward Alan DeChambeau at 6652, 6686; Ceferino Bayna at 6722-23, 6744, 6759; Tuomala at 10499), and that testimony was supported by individual employee records that showed more time than the certified payroll records. (See, e.g., DeChambeau, CX 229, 271; Andrews, CX 119, 229).

   Throughout the project, there were significant discrepancies between the Daily Inspector Reports and the certified payrolls submitted to the ConnDot. The Daily Inspector Reports showed more employee hours and listed employees as having worked who were not listed on the certified payrolls. The ALJ concluded that this evidenced willful and aggravated violations of the DBRA, R. D. & O. at 71-77, and we agree. The ALJ correctly rejected the argument of Shipsview and Deligiannidis that it was the victim of a union conspiracy. "Debarment cases under the DBRA frequently involve credibility disputes." Id. at 76. However, here, other than Deligiannidis' testimony, all the employee testimony, which the Daily Inspector Reports substantiated, demonstrated that "it was Shipsview's regular practice to ‘short' employees on their hours." Id.

   Shipsview and Deligiannidis also failed to produce all the employee time cards for the project upon request by the Wage and Hour investigator and Deligiannidis offered the explanation that the records had been "stolen." (Deligiannidis Depo., CX 212, at 138-39). The ALJ found that testimony conflicted directly with employee testimony, including the bookkeeper, who had no knowledge of the time cards being stolen. R. D. & O. at 74.

   There were also discrepancies between the certified payrolls given to the Wage and Hour investigator and those submitted to ConnDot. The ALJ found these redactions of employee hours to have been deliberate deletions consistent with continued misconduct by Shipsview and Deligiannidis. Id. We concur. "Shipsview's union conspiracy theory also totally ignores the fact that Shipsview produced two separate sets of certified payrolls to [the Wage and Hour Division]. When the two sets of records are compared, page for page, it is clear that the original set of payrolls had been altered by deletion prior to being given to the government's investigator." Id. at 77.

   In short, the testimony and exhibits support the ALJ's findings and conclusions that Shipsview and Deligiannidis "engaged in pervasive record falsification to conceal under payments to employees" and "deliberately deprived employees of wages to which they were entitled, falsified certified payroll records and hindered a federal investigation." Id. at 75, 78. We therefore agree with the ALJ that the Administrator has carried her burden of proving that Shipsview and Deligiannidis' violations of DBRA were aggravated and willful and subject them to debarment.

   C. Jewell Painting and Cameron Jewell subject to debarment

   We turn to the facts justifying debarment of JewellPainting and Cameron Jewell. Jewell violated the DBRA when it failed to pay its employees the prevailing wage for painters performing painters' tasks on the Arrigoni Bridge project. R. D. & O. at 41, 83. The underpayment of prevailing wages together with the submission of falsified certified payrolls constitutes willful violation of the DBRA and warrants debarment.

   We reject Jewell's argument that its practice of paying employees, on a "voluntary" basis, $175 for eight hours of overtime, does not evidence alteration of records or an intent to deceive the Department of Labor. Jewell claims these "agreements" with its workers "resulted in hours not being reported when the certified payrolls were prepared. . . .", not that Jewell altered its certified payrolls. Jewell Opening Brief at 28. This argument is without merit. Jewell consciously excluded overtime hours from its certified payrolls, hours for which it did not pay anything close to time and one half the regular rate. Jewell would have the Board accept the proposition that it is not in aggravated and willful violation of the acts because it never altered its payroll records after they were first prepared because those records falsely reported that the workers had not worked this overtime. Simply to state this proposition is to demonstrate its speciousness, as well as the aggravated and willful nature of Jewell's violations. The regulations do not simply forbid "alteration" of records already falsely created, they require accurate record-keeping of "hourly rates of wages paid . . . [and] daily and weekly number of hours worked. . . ." 29 C.F.R. § 5.5(a)(3).

   Furthermore, Jewell does not mention another crucial element in its scheme to avoid payment of required overtime and to falsify its records: the checks for these flat dollar amounts were listed as reimbursements for expenses, not overtime pay. Lowell Passons, a painter and painting foreman on the Arrigoni project, testified by deposition that, in weeks when there was a lot of overtime worked, Jewell asked the workers to accept "reimbursement checks for overtime hours to work just straight time so that they didn't have to pay such a massive amount of taxes and workmen's compensation." (Passons Depo., CX 289 at 37.)

   Passons' testimony that Cameron Jewell asked Passons on several occasions to drop his Department of Labor complaint conclusively shows Jewell's bad faith. Passons testified, "[Jewell] told me that [the complaint] could cause some serious trouble for him and he asked me to recant my complaint. . . . He asked me just not to pursue the complaint." (Id. at 95-96). Passons refused. On another occasion, Jewell asked Passons to sign a statement that these payments were payments for a truck. (Id. at 99; Ex. 6; CX 299). Incredibly, the statement Jewell asked Passons to sign said "I [Passons] accepted and agreed to be paid a lump sum check in the amount of $175 credited as a pickup truck expense when I worked in excess of 40 hours per week." Passons refused to sign the statement. (Passons Depo., CX 289 at 100). Consequently, Jewell's own hand inescapably confirmed his willful and aggravated attempt to avoid the overtimerequirements of the acts as well as to falsify his records.

   Accordingly we affirm the recommendation of the ALJ that Jewell Painting and Cameron Jewell should be debarred. R. D. & O. at 71.

    To recapitulate, we have made the following rulings:

   The record supports the ALJ's findings of fact and conclusions of law notwithstanding his adoption of the Administrator's post-hearing brief.

    The DBRA required the contractors to pay collectively bargained painters' rates for the bridge painting work at issue and the Respondent contractors violated the DBRA when they misclassified and underpaid employees performing work on the subject bridge painting projects. We adopt the ALJ's conclusion that DOL properly computed back wages against the Respondent contractors.

    We have rejected the Respondent contractors' arguments, namely that the scope of work clauses in the collective bargaining agreements were ambiguous and did not inform contractors that painters claimed the work; that the LAPS was inadequate and relieved the contractors of the responsibility of complying with the DBRA; that "mixed crews" of painters, carpenters and laborers worked on bridge painting projects and local area practice assigned grit collection to laborers; that the contractors were entitled to make wage classification decisions based on a "tools of the trade analysis"; that a change in containment standards represented new technology not governed by the previous wage classifications; and that the DOL should be estopped from charging misclassification of workers and seeking back pay because the ConnDoT acquiesced in and/or directed the contractors to pay carpenter and laborer rates on bridge painting work.

   For purposes of DBA coverage, Daskal workers that were performing clean up duties on the ground below the bridges were "laborers or mechanics" employed "directly on the site of the work." We have concurred in the ALJ's ruling that Daskal's pay practices violated the DBA, and have adopted his conclusions with regard to back wages against Daskal.

    Shipsview and Christos Deligiannidis, and Jewell Painting and Cameron Jewell engaged in aggravated or willful violations of the DBRA and they should be debarred from obtaining contracts subject to the DBRA for a period not to exceed three years.

   SO ORDERED.

      WAYNE C. BEYER
      Administrative Appeals Judge

      M. CYNTHIA DOUGLASS
      Chief Administrative Appeals Judge