40 U.S.C. §276a.

   Although the Davis-Bacon Act, by its terms, applies only to construction contracts directly entered into between the federal government and a contractor, many statutes that provide federal funding to non-federal entities (e.g., state and local governments, universities, public housing authorities, water and sewer districts, etc.) include provisions incorporating Davis-Bacon prevailing wage requirements into federal grants that are used to fund construction projects. As a result, the labor standards provisions of the Davis-Bacon Act

frequently apply to construction projects that receive some form of federal financial assistance. See 29 C.F.R. §5.1 for a list of statutes incorporating the Act's provisions. These statutes commonly are referred to as "Davis-Bacon Related Acts," because the prevailing wage features of the Davis-Bacon Act and its regulations (prevailing wage rates, payroll reporting requirements, etc.) follow the federal monies and therefore apply to federally-assisted construction projects, even though the federal government itself is not directly a party to the contract.

   The Davis-Bacon Act directs the Secretary to establish a schedule of "the minimum wages to be paid various classes of laborers and mechanics" to be employed on covered construction projects. 40 U.S.C. §276a. The statute itself does not identify what classifications of construction workers are encompassed within the universe of "laborers and mechanics"; this process of analyzing and assessing the various construction classifications is left to the Secretary, who in turn has delegated the responsibility to the Administrator of the Wage and Hour Division. The Administrator is charged with compiling schedules of wages and fringe benefits that prevail for various classifications of laborers and mechanics in localities where covered construction projects are performed. The procedures for predetermining wages and fringe benefits are found at 29 C.F.R. Part 1. The wage and fringe benefit rates established under these procedures are published in wage determinations; in turn, these wage determinations are incorporated by contracting agencies into the bid packages and contracts of construction projects covered by the Act. See 29 C.F.R. §5.5(a); see also 48 C.F.R. §36.213-3(c)(1999).

Administrator also had developed an uncodified practice of recognizing some job classifications under the Act that were denominated as "helpers" (or "tenders"), and publishing these helper classifications in the wage determinations along with the other classifications of "mechanics and laborers." The circumstances under which a helper classification would be approved (and therefore included in a wage determination) were limited. The standard for such approval was developed in a series of policy statements and decisions. The Wage Appeals Board used the following language when characterizing the standard in a case upholding the Administrator's refusal to publish a "roofer's helper" rate:

Petitioner [i.e., the construction contractor] provided Wage and Hour with a description of the duties to be performed by the roofer's helpers but Wage and Hour denied the request stating that rates for helpers would be issued only when it could be shown that employment of helpers was a prevailing practice, the scope of their duties was defined and the helper's duties were distinguishable from journeyman's or laborer's duties.

De Narde Construction Co., WAB Case No. 78-3 (May 14, 1979), slip op. at 2; accord, Pacific West Constructors, WAB Case No. 78-02 (Sept. 18, 1978) (request for a "roofer's helper" denied because duties of helper were not distinct from journeyman's); Prime Roofing, Inc., WAB Case No. 78-20 (Jan. 11, 1979) (same). This articulation of the helper standard was echoed by the Administrator when promulgating new helper standards in 1982 (discussed below), with the Administrator characterizing the pre-1982 practice using this language:

The Department currently recognizes a helper classification only where it is a separate and distinct class of workers, which prevails in the area, and where the helpers' scope of duties can be differentiated from those of journeymen.

47 Fed. Reg. 23658, 659 (May 28, 1982).

   Wage Appeals Board cases from the pre-1982 period made an additional distinction, apparently based on arguments advanced by the Wage and Hour Division, that if a helper classification was to be recognized on Davis-Bacon projects, it could not be a class of workers who were learning a trade through an informal (i.e., unregistered) training program:

It seems to the [Wage Appeals] Board that it is a misnomer to label the employees . . . under consideration [in this case] "helpers." Traditionally, helpers do not learn the trade with a view of ultimately becoming journeymen. There is merit to the view of Wage and Hour, and Petitioner itself admits, that the employees were trainees and it does not appear from the record that

they are registered in a training program that is approved or registered as required by the applicable regulations. Duly registered apprentices or trainees are the only employees covered by the labor standards provisions of the Davis-Bacon and related Acts and regulations applicable thereto who may be paid less than the predetermined wage rate for the work they perform.

Soule Glass and Glazing Co., Portland, MA, WAB Case No. 78-18 (Feb. 8, 1979), slip op. at 2. See also Fry Brothers Corp., WAB Case No. 76-06 (June 14, 1977) (helper classification not recognized when workers functioned as informal apprentices or trainees); Clevenger Roofing and Sheet Metal Co., WAB Case No. 79-14 (Aug. 20, 1980)(conformance request for a "roofer's helper" denied because helper effectively functioned as an informal trainee). Thus, before 1982, it appears to have been well-established that at least three elements were required of a helper classification before it would be recognized by the Division and included in a wage determination:

1. A helper classification needed to have duties distinct and differentiable from the tasks performed by journeymen.

2. Use of the helper classification needed to reflect prevailing local practice.

3. Helpers would not be recognized if they were merely informal (i.e., unregistered) trainees or apprentices learning a trade.

See De Narde Construction Co., supra, (articulating in a single formulation all the elements of the 3-part helper test).

   We also note an additional factor that sometimes appears to have been considered by the Division when deciding whether to issue helper classifications in communities: whether the helper classification was found in a union agreement. In communities where union wage rates and practices prevailed, and where the Davis-Bacon wage determinations therefore reflected negotiated wage rates, it appears that the Wage and Hour Division and the Wage Appeals Board sometimes looked to whether a helper classification existed in the local collective bargaining agreements. See Fry Brothers Corp., supra (declining to recognize helper classification, but suggesting in dicta that where union collectively-bargained rates are found prevailing and the labor agreement includes a helper classification, the Wage and Hour Division would recognize the helper classification); Opinion WH-202 (Mar. 1, 1973), available at BNA WH Manual 99:1113 (same). However, the Division's expressed interest in simply adopting helper classifications directly from labor agreements was not consistent, and never appears to have become an element of the standard test used by the Division to decide whether to publish a helper classification as part of a wage determination. In fact, the historical record suggests that the Wage Appeals Board uniformly refused to direct the Administrator to adopt helper classifications

that did not meet the 3-part helper test even helper classifications that appeared in collective bargaining agreements. See Pacific West Constructors, supra; Prime Roofing, Inc., supra; De Narde Construction Co., supra; Clevenger Roofing and Sheet Metal Co., supra.

   It is uncontested that during the pre-1982 period, the Wage and Hour Division routinely recognized elevator constructor helpers as a separate construction trade classification, and included wage and fringe benefit rates for the elevator constructor helper classification in Davis- Bacon wage determinations.

   At the close of the Carter Administration, the Department of Labor conducted a rulemaking proceeding to revise the Davis-Bacon regulations. Final regulations were published January 16, 1981, to become effective in February 1981. 46 Fed. Reg. 4306 and 4380 (Jan. 16, 1981). Apprentice and trainee provisions were modified, but the 1981 regulations did not include any provisions revising (or codifying) the policy on helper classifications. However, implementation of the 1981 Davis-Bacon regulations was suspended at the direction of President Reagan soon after taking office (46 Fed. Reg. 11253, Feb. 6, 1981), and another major reexamination of the Davis- Bacon regulations generally and the helper issue specifically ensued.

   On May 28, 1982, the Wage and Hour Division issued new Davis-Bacon regulations, changing a number of long-standing policies and procedures. Significantly, the regulations codified a new definition of the term "helper" and rules that would allow much broader use of helpers on Davis-Bacon jobs. Whereas the pre-1982 practice of the Division defined helpers by the tasks that they performed ("a separate and distinct class of workers . . . where the helpers' scope of duties can be differentiated from those of journeyman" (see 47 Fed. Reg. 23659)), under the new regulations a helper classification would be defined and recognized based primarily on the helper's supervision by a journeyman:

A helper is a semi-skilled worker (rather than a skilled journeyman mechanic) who works under the direction of and assists a journeyman. Under the journeyman's direction and supervision, the helper performs a variety of duties to assist the journeyman such as preparing, carrying and furnishing materials, tools, equipment, and supplies and maintaining them in order; cleaning and preparing work areas; lifting, positioning, and holding materials or tools; and other related, semi-skilled tasks as directed by the journeyman. A helper may use tools of the trade at and under the direction and supervision of the journeyman. The particular duties performed by a helper vary according to area practice.

29 C.F.R. §5.2(n)(4)(1982); see also 47 Fed. Reg. 23658 (May 28, 1982). Under this new definition, helpers (characterized as "semi-skilled" workers) could perform the same tasks as the journeyman, so long as they were under a journeyman's supervision.

   The 1982 Davis-Bacon regulations, including the portion dealing with the "helper" definition, were challenged in a lawsuit brought by several labor organizations. In a decision issued in 1983, the U.S. Court of Appeals for the District of Columbia Circuit approved the Department's new "helper" definition, to be codified as 29 C.F.R. §5.2(n), and upheld generally the Department's authority to allow the increased use of helpers under the Davis- Bacon Act. Building and Construction Trades Department, AFL-CIO, et al. v. Donovan, et al., 712 F.2d 611 (D.C. Cir. 1983), cert. denied, 464 U.S. 1069 (1983). However, the court disapproved the specific portion of the new regulations prescribing the circumstances under which helper classifications would be authorized. Id. Without such provisions, there effectively was no implementation of the broader "helper" concept of the 1982 rulemaking, even though the 1982 definition of the term "helper" was approved by the court and had become formally part of the Code of Federal Regulations.

   New procedures and standards for allowing expanded use of helpers on Davis- Bacon jobs were finalized in 1989. 54 Fed. Reg. 4234 (Jan. 27, 1989). Although the new regulations again were challenged by several of the unions before the courts, they were implemented briefly beginning February 4, 1991. 55 Fed. Reg. 50148 (Dec. 4, 1990).

C. The suspension of the "helper" regulation, the return to the 3-part test for issuing helper classifications in wage determinations, and application of the 3-part test to elevator constructor helpers.

   In April 1991, Congress enacted and President Bush signed a supplemental appropriations bill that, inter alia, barred the Department of Labor from expending any funds to implement or administer the new helper regulations. Dire Emergency Supplemental Appropriations Act of 1991, P.L. 102-27 (105 Stat. 130) Section 303. After FY 1991 concluded (as well as several continuing resolutions that funded government operations into the beginning of FY 1992), the Administrator instructed the contracting agencies to implement the helper rule in January 1992.

   Soon afterward, the U.S. Court of Appeals for the District of Columbia Circuit issued its decision in the unions' challenge to the 1989 version of the helper regulation. Much of the new version of the helper regulation was approved by the court, but a provision dealing with journeyman-to-helper ratios was invalidated. Building and Construction Trades Dep't, AFL-CIO et al v. Martin et al, 961 F.2d 269 (D.C. Cir. 1992), cert. denied 506 U.S. 915 (1992). The court decision was issued in April 1992; in June 1992 the Department issued a notice in the Federal Register removing the ratio provision. 57 Fed. Reg. 28776 (June 26, 1992).

   President Clinton took office at the beginning of 1993. That year, Congress again acted to prevent the Department from implementing the helper regulation, with the FY 1994 Department of Labor Appropriations Act, P.L. 102-112, prohibiting the Department from implementing or administering the revised rule. In response to the congressional spending ban, on November 5, 1993, the Department issued a Notice in the Federal Register suspending the 1982 and 1989 helper regulations indefinitely and reinstituting the Department's pre-1982 helper policy, which was characterized with this language:

    Prior to promulgation of the [1982-1989] helper regulations which are being suspended by this notice, it was the policy of the Department that a helper classification would be approved only if it was a separate and distinct class of worker, that prevailed in the area, to perform duties that could be differentiated from the duties of journeylevel workers in the classification, as well as other classifications on the wage determination. Helpers could not ordinarily use "tools of the trade," nor could they be used as informal apprentices or trainees.

    The suspension of these [1982 - 1989] helper regulations reinstitutes this prior practice of the Department.

   The concept of a helper under the now-repealed 1982-1989 helper regulation was dramatically different. The helper that would have been recognized under the 1982 regulation was a straightforward subjourneyman classification, performing the same work as the journeyman, but subject to a journeyman's supervision. We note, however, that between the multiple court challenges and various appropriations bills prohibiting implementation of the helper regulation, this broader 1982 approach to recognizing helpers on Davis-Bacon projects was implemented only for brief periods. It appears, therefore, that the "traditional" (if uncodified) 3-part helper test has been in effect almost continuously since the 1970's.

   On the record before us, there does not appear to be any dispute that it is commonplace throughout most of the elevator construction industry to employ crews that include both elevator mechanics and elevator constructor helpers (also known as elevator mechanic helpers). It also appears that until sometime in the early 1990's, the Administrator routinely recognized the elevator constructor helper classification, and included the classification and associated wage/fringe benefit rates in Davis-Bacon wage determinations. It is unclear precisely when the Administrator decided to reexamine the work performed by elevator constructor helpers, but at some point in the early 1990's the Administrator concluded that the classification did not meet the 3-part helper test, and stopped including the helper classification in wage determinations. Based on this changed approach, the wage determinations applicable to Miami Elevator's and Mid-American Elevator's projects included wage rates for elevator mechanics, but not elevator constructor helpers.

A. Mid-American Elevator's conformance request (ARB Case No. 97-145).

   Sometime prior to June 1, 1995, Mid-American (apparently in a joint venture with a second firm, Rainbow Elevator) submitted a winning bid to the Chicago Housing Authority (CHA) for construction of seven traction elevators at the Henry Horner Homes in Chicago. AR Mid- Am Tab D. Although the contract was with a local public housing agency, and was not a direct contract with the federal government, it is undisputed that it was subject to the prevailing wage requirements of the Davis-Bacon Act and its regulations.

   The wage determination applicable to the CHA elevator contract was General Decision IL 95009. Id. This wage determination included wage and fringe benefit rates for the elevator mechanic classification ($25.29/hr. wages, and more than $6.12/hr. in fringe benefits), but did not include the elevator constructor helper classification and associated rates. AR Mid-Am Tab I at 3. Mid-American was awarded the contract on June 29, 1995. AR Mid-Am Tab D.

   In February 1997 more than 20 months later Mid-American asked that two additional job classifications be added to the wage determination for the CHA project, using the Davis-Bacon conformance procedures at 29 C.F.R. §5.5. The requested classifications were an Elevator Constructor Helper ($17.70/hr. wages plus $6.12/hr. fringe benefits) and an Elevator Constructor Probationary Helper ($12.645/hr. wages and no fringe benefits). The request initially was submitted by Mid-American to the Chicago Housing Authority's contracting officer using the Labor Department's Standard Form (SF) 1444. The SF 1444 includes a section in which the employee representative (in this case, Elevator Constructors Local 2) indicates whether it concurs with the proposed additional classification and wage rates. In this instance, the union did not concur with adding the helper rates. AR Mid-Am Tab D.

AR Mid-Am Tab C. The letter closed by observing that "[n]o information has been submitted [to the Division] to suggest that these tests are met with regard to the helper classification proposed in the case." Id.

   Through its attorney, Mid-American requested by letter dated May 6, 1997, that the Division reconsider the Section Chief's decision denying the conformance request. AR Mid- Am Tab B. According to counsel's letter, Mid-American forwarded copies of earlier correspondence addressing the question whether the elevator constructor helper classification met the 3-part test, expressing concern that the materials may never have been routed properly to the Section Chief, and that his March 1997 decision therefore may not have taken this information into account. Apparently believing that the earlier denial had been based solely on the first element of the 3-part helper test (i.e., whether the helper performs duties that are clearly defined and distinct from those of the journeyman classification and from the laborer), Mid-American argued that under its labor agreement with the IUEC, helpers are a distinct classification distinguishable from the elevator mechanics:

    Based on previous correspondence and communications, we understand the Branch of Construction Wage Determinations does not seriously dispute that the Elevator Constructor Helpers meet parts (ii) and (iii) of the test. Rather, it believes that the Helpers do not meet part (i) of the test, i.e. that they do not perform duties separate and distinct from those of the Mechanics. As we understand the Branch's rationale, it is based on the rationale that Helpers perform many of the same actual work tasks that a Mechanic will perform.

    We submit this is a facile and unworkable premise that does not take into account that a Helper cannot do the more skilled tasks a Mechanic performs unless closely supervised and directed by a Mechanic. For example, Helpers are not allowed to work unsupervised or to have their own tools. They might be able to do a particular less complex work assignment that a Mechanic will do, but they must be told what to do and how to do it by the Mechanic, who is responsible for reviewing and making sure the Helper is doing right. A Helper is never allowed to work on an assignment or project without a Mechanic being present and working with him.

AR Mid-Am Tab B at 2 (emphasis supplied).

   The Administrator (through his designee) responded with an extended letter dated January 23, 1998, reviewing the history of helper classifications under the Davis-Bacon Act and again denying the conformance. AR Miami Tab A. The Administrator again relied on the language in the Standard Agreement between the IUEC and elevator contractors declaring that helpers were not restricted in the work that they could perform on an elevator construction project and that their duties therefore overlapped with the tasks performed by mechanics. Noting that the elevator mechanic wage rate in the Tampa wage determination was based on the union-negotiated scale, the Administrator cited the Wage Appeals Board's seminal decision in Fry Brothers Corp., WAB Case No. 75-6 (June 14, 1977), which stands generally for the proposition that collectively-bargained trade classification practices are followed in situations where the wage determination rate for a job classification is the negotiated rate. With specific regard to Miami's tabulation of the allegedly distinct duties performed by elevator constructor helpers and mechanics, the Administrator noted that there was no evidence that union contractors who performed elevator construction work in Hillsborough County (Tampa) restricted the duties of elevator constructor helpers in the manner that Miami claimed to have employed on the Tampa project, i.e., with helpers allegedly not performing any of the tasks of elevator mechanics. AR Miami Tab A. Miami submitted a petition for review to this Board, which was docketed as ARB Case No. 98-086.

C. Procedural history before the Administrative Review Board.

   The Board's review of the Administrator's rulings is in the nature of an appellate proceeding. 29 C.F.R. §7.1(e). We assess the Administrator's rulings to determine whether they are consistent with the statute and regulations, and are a reasonable exercise of the discretion delegated to the Administrator to implement and enforce the Act. Dep't of the Army, ARB Case Nos. 98-120, 98-121, 98-122 (Dec. 22, 1999), slip op. at 16 (under the parallel prevailing wage statute applicable to federal service procurements, the Service Contract Act, 41 U.S.C. §351 et seq.), citing ITT Federal Services Corp. (II), ARB Case No. 95-042A (July 25, 1996) and Service Employees Int'l Union (I), BSCA Case No. 92-01 (Aug. 28, 1992). 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 Service Tower, WAB Case No. 89-14 (May 10, 1991), slip op. at 7, citing Udall v. Tallman, 380 U.S. 1, 16-17 (1965).

   In this discussion, we consider the following issues:

   (1) Whether the Acting Administrator erred in concluding that the elevator constructor helper classification cannot be recognized under the 3-part helper test because:

    (a) the duties of elevator constructor helpers are not distinguishable from the duties performed by elevator constructor mechanics; and

(b) elevator constructor helpers are trainees in an informal training program.

   (2) Whether the Administrator's conclusion that the elevator constructor helpers could not be classified and paid as "skilled laborers" is consistent with the statute and regulations, and reasonable.

   (3) Whether the Administrator's decision not to recognize the elevator constructor helper classification is consistent with the Davis-Bacon Act, when the use of elevator constructor helpers is a locally prevailing practice and the Administrator's decision arguably represents a change in longstanding practice when issuing DBA wage determinations.

A. Whether the Acting Administrator erred in concluding that the elevator constructor helper classification cannot be recognized under the 3-part helper test because the duties of elevator constructor helpers are not distinguishable from the duties performed by elevator constructor mechanics, and/or elevator constructor helpers are trainees in an informal training program.

   As discussed in detail above, prior to 1982 the Administrator developed an uncodified 3-part test for determining when to recognize a helper classification and publish the job title and wage rate in a Davis-Bacon wage determination (separate and distinct duties, prevailing practice in the locality, and not an informal trainee program). This standard had been sanctioned as reasonable in a series of Wage Appeals Board rulings. See pp. 5-7, supra. From 1982 until the early 1990's, the Department attempted to implement a different, supervision-based

approach to recognizing helpers. Under this approach, it was not necessary that the helpers' duties be distinct from the tasks performed by journeymen; instead, helpers would be recognized on Davis- Bacon jobs and could perform many of the same tasks as journeymen, so long as they were supervised by journeymen. Supra, pp.7-8. By 1993, however, the Department abandoned efforts to implement the 1982 helper regulation, and reverted to the earlier 3-part helper test. Supra, pp. 8-9.

   In their submissions to the Administrator and to the Board, both Miami and Mid-American have conceded that the issue is whether the elevator constructor helper classification meets all the elements of the 3-part helper test. Moreover, there is no dispute among the parties that employing helpers is the prevailing practice among elevator contractors in the two localities (Chicago and Tampa); thus, the "second prong" of the 3-part helper test is not at issue here. In this section of the discussion, we review the arguments advanced by the parties concerning (1) whether the helpers' tasks are "clearly defined and distinct" from the tasks performed by mechanics (the first element of the test), and (2) whether the helpers are trainees in an informal training program (the third element). We then follow with our analysis of these issues.

1. Whether elevator constructor helpers perform tasks that are "clearly defined and distinct" from the tasks performed by elevator mechanics.

   In the final decision letters issued to each of the two contractors, the Administrator (through his designee) offered the following explanation for his conclusion that the duties of the elevator constructor helper were not "clearly defined and distinct" from those of the mechanic:

The Standard Agreement between the National Elevator Industry Inc. (NEII) and the International Union of Elevator Constructors (IUEC), which provides the context for determining the prevailing practices of union contractors in the elevator construction sector of the construction industry, discusses helpers in "Article X." Paragraph 1 of Article X, entitled, "Designation of Helper's Work and Qualifications," states that "there shall be no restrictions placed on the character of work which a Helper may perform under the direction of a Mechanic." Further provisions in Article X allude to training modules which may be completed before a helper becomes a fully qualified mechanic, and conditions under which some helpers who have not completed all of these modules may be employed as "Temporary Mechanics." Thus, the collective bargaining agreement indicates that the duties of helpers employed by union contractors who are signatories to the Agreement may overlap [with the duties of elevator mechanics].

   Both Mid-American and Miami challenge the Administrator's conclusion, albeit taking different approaches.

   Mid-American's Petition for Review In its Petition for Review, Mid- American relies on the arguments it raised earlier to the Administrator. Mid-American challenges the Administrator's interpretation of the language found in Article X of the Standard Agreement:

There is no way . . . that one can look at Article X as a whole or for that matter the agreement as a whole and logically conclude that the Helpers do not have clearly defined and distinct duties from those of the Mechanic classification. While the Mechanics are free to delegate whatever duties they see fit to the Helpers, the Helpers simply cannot do the same skilled tasks unless closely supervised and directed by a Mechanic. In fact, the agreement makes clear that Helpers are not allowed to do anything without supervision by a Mechanic, nor are they allowed to have their own tools. Even with respect to the less complex work assignments they may be delegated, they must be told what to do and how to do it by the Mechanics, who are responsible for overseeing and making sure the Helpers are doing the assigned task right.

PR Mid-Am at 3.

   Miami Elevator's Petition for Review In its Petition, Miami notes the Administrator's long-standing recognition of the elevator constructor helper classification, pointing out that the Department explicitly had mentioned the prevalence of the elevator constructor helper classification when issuing the final rule in 1996 suspending the 1982 helper regulations. PR Miami at 4; see 61 Fed. Reg. 68641, 44 n.3 (Dec. 30, 1996)("Fifteen of the 21 union help [sic] classifications were elevator constructor helpers a classification historically recognized nationwide in the union sector of the elevator constructor trade.") (emphasis added). Miami also points to its earlier tabulation of the claimed "separate and distinct" job duties of helpers and mechanics on the Tampa courthouse job (AR Miami Tab D), submitted to the Administrator as part of the conformance request, as further evidence in support of its claim that the helpers perform tasks different from the mechanics.

construction projects are "separate and distinct" from the work performed by the elevator mechanics:

For many years, the collective bargaining agreements negotiated by the IUEC have recognized a helper classification, which is paid at a lesser rate than the mechanic. Thus, the Union can hardly object in principle to the use of helpers on construction projects. What the Union does object to, and what it seeks to address in this reply brief, is Mid-American's distortion of the facts in order to squeeze itself into the Procrustean bed of DOL's established test for recognizing a helper classification. The IUEC did not urge DOL to adopt that particular test; but as long as it is to be employed, the Union believes it should be administered fairly and with due regard to the evidence. The evidence in this case does not support the conclusion that under DOL's test, an elevator constructor helper classification should be recognized on this particular [Chicago Housing Authority] job.

IUEC Reply - Mid-Am at 9; accord, IUEC Reply - Miami at unnumbered p.8. In support of this proposition, the IUEC attached a series of affidavits to its Reply Briefs, including an affidavit of the union's former Director of Organizing, John Quackenbush, and individual affidavits from elevator mechanics who worked for Miami and Mid-American on the two construction projects at issue in these conformance cases. In all instances, the affidavits support the proposition that although there is a hierarchy of responsibility among the elevator crew on the projects (mechanics being in charge, and helpers assisting in a subordinate capacity), the two classifications are substantially integrated in their work and there is substantial overlap in the tasks they perform. Id., see attachments.

   Mid-American submitted a reply in response to the briefs of the Administrator and the IUEC. Mid-American asserted that the instant dispute is similar to the situation considered by the Wage Appeals Board in Hawk View Apartments, WAB Case No. 85-20 (Apr. 24 1986), and that the Administrator's decision not to recognize the elevator constructor helper neither "advances or even reflects the basic purposes of the Davis-Bacon Act, i.e., to 'hold . . . a mirror up to local prevailing wage conditions and reflect . . . them.'" Reply - Mid-Am at 4, quoting Hawk View, slip op. at 8. In rebuttal to the IUEC's affidavits, Mid- American submitted an affidavit by the company president, Robert R. Bailey III, contesting the premise of the IUEC affidavits that the tasks performed by helpers on the CHA project did not differ from the work of the mechanics. See generally Reply - Mid-Am.

   Miami similarly submitted a short response to the Administrator's brief in its appeal, noting alleged weaknesses in the Administrator's efforts to explain away the documents

Miami had proffered with its Petition (i.e., Opinion WH-202, the Hawk View decision, and a copy of a conformance decision issued by the Division to the Rome Housing Authority in July 1997). See generally Reply - Miami.

2. Whether elevator constructor helpers are trainees in an informal training program.

   In his final decision letters, the Administrator expressed the view that the helper classification is an informal (i.e., unregistered) training program, and its participants therefore are informal trainees. Under this reasoning, the classification fails the third element of the 3-part test. AR Mid-A, Tab A at 3-4; AR Miami Tab A at 5. The Administrator noted that the Standard Agreement refers to a national training program for elevator constructor helpers, but that the program has never been registered as an apprentice or trainee program with federal or state agencies. Id.

   Neither Mid-American nor Miami argues that the elevator constructor helper classification meets the requirements of the formally-recognized apprentice or trainee programs. Instead, Mid-American asserts that the Administrator's reasoning on the "informal trainee" issue is circuitous, essentially the result of an incorrect conclusion regarding the "separate and distinct duties" test. Under Mid-American's argument, the "informal trainee" issue disappears once the elevator constructor helper is correctly recognized as an entirely separate class of worker "whose function is to assist the Mechanics." PR Mid- Am at 3.

    Miami offers an argument on this point that focuses on history, declaring that the helper classification and training program existed during the many years when the Wage and Hour Division recognized the job title, yet the existence of the training program had never been viewed as an impediment to approving the helper position under the 3-part test. Moreover, Miami represents that many helpers do not seek training to become journeymen and do not go through the steps required to become mechanics. PR Miami at 6-7. In its Reply brief, Miami asserts that the company "has no requirement that its helpers participate in any training program" and that "many" of its helpers have worked in the classification for years, with no desire to become a mechanic. Reply Miami at 4.

   The IUEC does not offer argument with regard to the training issue, but notes in its Reply to the Mid-American Petition that the Standard Agreement (Art. X, ¶4) provides that helpers are eligible to become mechanics only after working in the trade for three years and completing the training courses and an examination. IUEC Reply Mid-Am at 3-4; see also AR Mid-Am, Tab E (Standard Agreement).

   Analysis Mid-American and Miami each argue that elevator constructor helpers perform duties that are separate and distinct from the duties performed by elevator mechanics, and are not trainees in an informal (i.e., unregistered) training program. In his final decision letters, the Administrator has concluded otherwise; the Administrator's position regarding the duties of the helpers and mechanics is endorsed by the IUEC, the Intervenor. Based upon the record before us, it is clear that the Administrator has reached the better conclusion.

   "Clearly defined and distinct duties" issue At the outset, it must be acknowledged that the Administrator's own efforts to justify his decision are conspicuously weak. The initial letters from Wage and Hour Division Section Chief Sullivan to the contracting agencies (GSA, HUD) merely cite to the DBA conformance regulations and restate the 3-part test for recognizing helper classifications, then conclude with the bald declaration that "[n]o information has been submitted to suggest that these tests are met with regard to the helper classification proposed in the case." AR Miami Tab E, AR Mid-Am Tab C. The Section Chief offers no meaningful analysis of his reasons for rejecting the Petitioners' arguments, notwithstanding the fact that Miami Elevator had submitted a copy of the 1973 Opinion WH-202 (seeming to suggest that a helper classification found in a collective bargaining agreement presumptively would be approved), and Mid-American had noted that these same elevator constructor helpers routinely had been recognized on Davis-Bacon projects in the past. AR Miami Tab F; AR Mid-Am Tab E.

   The Administrator's final decision letters are not much more enlightening. By the time the Administrator issued his final decisions in these cases, Miami had augmented its evidence with an extended tabulation of the responsibilities of elevator helpers and mechanics on the Tampa courthouse job. AR Miami Tab D. Mid-American again had questioned why the elevator helper had been recognized routinely for many years under the 3-part test, but now was deemed not to meet the same test; in support of its conformance request, it had offered a concise justification for its view that the duties assigned to the helper classification were distinct from mechanics' duties. AR Mid-Am Tab B.

   In the final decision letters, the Administrator admits that the Wage and Hour Division had a long tradition of recognizing the elevator helper classification, but merely declares without explanation that the "practice was reviewed, and it has been discontinued." AR Miami Tab A, AR Mid-Am Tab A. Nowhere is there a discussion suggesting that changed work practices in the elevator construction industry prompted the shift in practice, nor is there any explicit claim that the Administrator had reassessed the relationship between the helpers and mechanics and concluded that his prior practice had been in error.

   The sole argument advanced by the Administrator in support of his conclusion that the duties of the elevator helper overlap with those of the elevator mechanic (thereby precluding recognition under the 3-part helper test) is the Administrator's interpretation of Article X of the Elevator Industry's Standard Agreement. The Administrator does not cite any facts regarding actual field practices to support his interpretation of the labor contract, nor does he claim that his

AR Mid-Am Tab B at 2 (underscore in original, italics added). Here again, the contractor plainly

is indicating that the helper is performing work of the elevator constructor craft as part of a team, with the key demarcation between the mechanic and helper classifications being the relative levels of skill and responsibility. This relationship is consistent with the type of supervision-based helper that would have been recognized under the now-superseded 1982-89 DBA helper regulation, but it is inconsistent with the "separate and distinct duties" element of the Administrator's 3- part test for recognizing helpers that currently is in effect.

informal training program. We could not reach such a conclusion, because the record is silent on the content such an apprenticeship program would include and what relationship, if any, an apprenticeship program would have to the elevator helper classification. However, the Administrator is correct that the Standard Agreement describes repeatedly the training function that is associated with the elevator helper classification, which is the entry-level classification in the industry. It is apparent that new workers ordinarily are hired as helpers, are provided with training and experience, and at some point are allowed to rise to journeyman level by taking an examination. And Miami's assertion that some trainees never rise to the journeyman mechanic level serves to support the very distinction that the Administrator makes i.e., that the helpers essentially are participating in an informal training program because one of the hallmarks of the registered apprenticeship and trainee classifications that are approved for Davis-Bacon purposes is that the workers who participate in these organized programs of instruction ultimately complete the programs and move onward to higher-level classifications; the apprentice and trainee positions are not terminal classification in themselves. See, e.g., 29 C.F.R. §29.5. Although the record on this question is slim, we find that it too supports the Administrator's final decisions that the elevator helper classification does not meet the requirements of the third element of the Administrator's 3-part test.

B. Whether the Administrator's conclusion that the elevator constructor helpers could not be classified and paid as "skilled laborers" is consistent with the statute and regulations and reasonable.

   Citing language found in All Agency Memorandum No. 174, Miami Elevator argues that if the Administrator does not approve the conformance request, then the proper remedy is to reclassify its elevator constructor helpers as "skilled laborers." PR Miami at 7; AR Miami Tab D at unnumbered p. 4. Miami relies upon the following text from the Wage and Hour Division's 1993 directive to contracting agencies:

The Department will continue to take action to ensure that workers erroneously classified as helpers are reclassified as journey-level workers or laborers in accordance with the work performed (those cases, for example, where employees perform work solely of a skilled nature, where individuals do not work under the supervision and direction of a journey-level classification, or where workers perform duties beyond the duties performed by helpers pursuant to the practice in the area).

AAM No. 174 at 3.

   Miami misconstrues the language and intent of the All Agency Memorandum. The laborer classification is not a default option that automatically is available to construction

contractors in the event that a helper classification is not recognized. Just as the various mechanic classifications each have well-defined collections of tasks that in the aggregate define "the trade" under the Act and the regulations, so too does the laborer craft have its own distinctive duties in each locality. Based on Miami's tabulation of the tasks performed by elevator constructor helpers (AR Miami Tab D), it is clear that the helpers are engaged actively in performing the work of the elevator construction trade and, absent their participation in a registered apprentice or trainee program, must be paid as elevator mechanics pursuant to 29 C.F.R. §5.5(a)(4). The Administrator therefore is correct in finding that the elevator helpers are not to be classified as "skilled laborers."

C. Whether the Administrator's decision not to recognize the elevator constructor helper classification is consistent with the Davis-Bacon Act, when the use of elevator constructor helpers is a locally prevailing practice and the Administrator's decision arguably represents a change in longstanding practice when issuing DBA wage determinations.

   In addition to its fact-based argument that elevator helpers perform duties that are distinct from those of mechanics, both Petitioners assert more general legal arguments challenging the Administrator's decision. Mid-American focuses on the undisputed fact that using helpers in the elevator industry is prevailing local practice, arguing that the Administrator's decision results in classification practices that do not "hold . . . a mirror up to local prevailing wage conditions and reflect . . . them." Reply - Mid-Am at 4, quoting Hawk View, slip op. at 8.

   Miami raises arguments tied to three Labor Department documents relating to the recognition of helpers on Davis-Bacon jobs that it views as precedential: (1) the Wage Appeals Board's 1986 decision in Hawk View Apartments; (2) a July 1997 conformance decision involving elevator mechanic helper job classifications issued by the Wage and Hour Division for a Rome Housing Authority (New York) construction project; and (3) a 1973 opinion letter issued by the Wage and Hour Division, Opinion WH-202 (Mar. 1, 1973), available at BNA WH Manual 99:1113.

   Hawk View Apartments As today, the 1986 Hawk View decision was issued by the WAB during a period when the 3-part helper test was the standard being used by the Wage and Hour Division. The Hawk View dispute arose on a low-income housing project in Reno, NV, which was subject to both the labor standards provisions of the Davis- Bacon Act and the Nevada state prevailing wage law. The Labor Department's DBA wage schedule included "plumber" and "sheet metal worker" classifications and wage rates that were based on the local union rates; however, the DBA wage determination did not include classifications and wage rates for "plumber's helpers," "irrigation plumber's helpers" or "utility man," even though the collective bargaining agreements

included these subjourneyman classifications. In contrast to the DBA wage determinations, however, the Nevada state prevailing wage determination recognized these classifications. Both the DBA and the Nevada wage determinations were included in the specifications applicable to the housing project.

   The prime contractor on the project and the Reno Housing Authority submitted conformance requests to the Wage and Hour Division seeking to add the helper and utility man classifications; the requests were denied. The Housing Agency began withholding funds from the contractor in connection with wage underpayments to the helpers and utility men.

   An appeal to the Wage Appeals Board followed, and the Board reversed the Administrator's decision and approved the conformance of the helper classifications in a 2-member majority opinion, joined by a separate concurrence by Member Thomas Dunn. The Board's 2- member majority opined that under the specific facts of the Hawk View case,

it would not effectuate the purposes of the Act to assess a remedy as though the basic purposes of the Davis-Bacon Act had been violated. . . . The Board will not go on to consider whether there may have been fine technical violations of the Department of Labor's regulations regulations which may be out of touch with the applicable Nevada local practice.

Hawk View, slip op. at 5. The majority was heavily swayed by the fact that the use of plumber's helpers and utility men reflected local practice as evidenced by the Nevada state prevailing wage determination, and that all the local bidders on the project probably would have used the same staffing patterns. In the Board's words:

    In this case, the majority concludes that any local area contractor conforming to local practice as well as local negotiated agreements who bid the instant job would not have done it any differently than the way that it was performed here.

    One of the classical statements oft repeated with respect to the Davis-Bacon Act is that the Act holds a mirror up to local prevailing wage conditions and reflects them. The majority concludes that it would not effectuate the purposes of the Act to establish a double standard; one which pertains to local area practice established by the State of Nevada under its Prevailing Wage Law derived wholly from negotiations between crafts and employers in the construction industry for private construction without Davis-Bacon Act funds, and another set of standards that applies only to federally financed or federally aided programs subject to the Davis-Bacon Act.

Id., slip op. at 7-8.

   Member Dunn reached the same result in his concurrence (i.e., reversing the Administrator and approving the addition of the helper rates), but through a different analysis. In Dunn's view, it was appropriate to approve the helper and utility man wage rates simply because the journeyman wage rates in the wage determination were based on union scale, and the underlying collective bargaining agreements recognized the subjourneyman classifications:

    In this case there is no dispute that the helper and other subjourneyman classifications requested by the petitioner reflect locally prevailing practice in the Reno, Nevada, area. The impediment to their approval by the Assistant Administrator was that the scope of duties of each of the proposed classifications was not clearly defined and distinct from the journeyman's duties. All that is held in this case is that where the Wage and Hour Division determines that the prevailing rate for a classification of laborer and mechanic is equivalent to the wage rate negotiated in a collective bargaining agreement applicable to the same classification of laborer and mechanic in the locality, the work practices adopted in that agreement, including recognition of helper and other subjourneyman classifications, shall also be recognized as prevailing.

Id., concurrence of Member Dunn, at 12 (emphasis added).

   In its Petition, Miami calls to the Board's attention both the majority opinion and the concurrence in Hawk View, asserting that these opinions offer strong support for its view that the Administrator should have recognized the elevator helper classification because such recognition would be consistent with the "basic principles of the Act," and specifically with Member Dunn's view that the presence of the helper classification in the collective bargaining agreement the source of the prevailing elevator mechanic wage rate should be sufficient to merit publication of the negotiated helper wage rate. PR Miami at 4-5.

   Wage and Hour Division's Rome Housing Authority conformance action (July 24, 1997) Miami also notes that in July 1997 (i.e., roughly during the same time period when Miami and Mid-American were seeking to add the helper classifications through the conformance process), the Wage and Hour Division issued a conformance decision to the Rome (New York) Housing Authority approving the addition of an "Elevator Mechanic" classification to a wage determination at the wage rate normally paid to the elevator constructor helper. AR Miami Tab C. Miami asserts that the Administrator's decision denying the conformance request for the Tampa courthouse project is a "departure from the precedent established only last summer by the Rome, New York conformance approval." PR Miami at 6.

   Neither Miami nor the other parties to this proceeding offers any explanation of the events leading up to the Rome Housing Authority conformance action. However, we note that the Rome Housing Authority requested that both Elevator Mechanic ($22/hr., plus benefits) and Elevator Mechanic, Helper ($15.40/hr., plus benefits) job classifications be added to the wage determination applicable to the housing project. If the wage determination had included an elevator mechanic classification and wage rate, there would have been no need to ask that a mechanic rate be added through the conformance process. Thus, we infer that the original wage determination did not include any job classification for performing elevator construction work (i.e., neither the elevator mechanic or the elevator helper position).

   In response to the conformance request, the Wage and Hour Division declared that a helper classification would not be approved unless it met the 3-part test, and that the requested Elevator Mechanic, Helper classification would not be approved without a showing by the Housing Authority that the position met all the criteria of the test. However, the Wage and Hour Division expressed a willingness to establish the Elevator Mechanic at the lower wage rate that had been proposed for the Helper (i.e., $15.40/hr. plus benefits). As a result, the conformance action technically denied the addition of the Helper job classification, but approved the conformance of the Mechanic classification at the lower wage rate normally paid to the Helper. Miami argues that the Administrator's denial of its conformance request on the Tampa project is inconsistent with the Administrator's willingness to publish an elevator mechanic classification at an elevator helper wage rate in the Rome Housing Authority action.

   Opinion WH-202 In support of its Petition, Miami also cites Opinion WH-202 (BNA WH Manual 99:1113), an opinion letter issued by the Assistant Wage and Hour Administrator in 1973, which addresses the circumstances under which the Division would recognize a helper classification under the Davis-Bacon Act. PR Miami at 5. In relevant part, the Opinion provided the following guidance, apparently addressed to the Department of Housing and Urban Development:

    "Carpenter's helper" and other such subclassifications are included in construction wage determinations . . . when the information available indicates that a practice of using such a classification prevails in the area. . . .

    When information available to the Department shows the prevailing rate for carpenters, for example, to be the same as the local union rate, the Department will conform to union negotiated practice insofar as any subclassification such as helper is concerned. If such a classification is included in the negotiated agreement, the Department will include the classification in applicable decisions. The duties ascribed to the position by the Department will be the same as those contemplated in the agreement.

    With the exception of a situation where negotiated rates prevail as described in the preceding paragraph, specific statements with universal application cannot be made regarding the proper distinction between a "helper" and a "laborer" or the extent to which either may use "tools of the trade." . . .

* * *

    The Department will not, without a clear showing of prevailing practice, issue or approve helper classifications when in local usage this classification is actually an informal trainee position. [The Davis-Bacon] Regulations . . . provide for the use of apprentices and trainees on projects subject to Davis-Bacon requirements. Such classifications are not, and need not be, included in the wage determination.

Id. Miami argues its requested elevator constructor helper classification fits squarely within the standard articulated by Opinion WH-202. In Miami's view, if the Department is to "conform to union negotiated practice insofar as any subclassification such as helper is concerned[,]" id., it follows that the elevator constructor helper classification should be recognized in connection with the wage determination applicable to the Tampa project because it is undisputed that the employment of the helper classification prevails in the locality, and the prevailing wage rate for the elevator mechanic is based on the collectively-bargained rate.

   Administrator's Reply In response to Miami's legal arguments, the Administrator discounts the significance of the documents cited by Miami. Admin Resp - Miami at 7-8. The Administrator characterizes the Wage Appeals Board's decision in Hawk View as "a questionable anomaly," incorrect legally because the decision (a) was inconsistent with the Department's Davis-Bacon regulations and (b) was based upon unusual facts. Id. With regard to Opinion WH-202, the Administrator asserts that the document "merely repeats the longstanding position . . . that helpers will be recognized if their use is an established prevailing practice in the area," and declares further that "to the extent that a 25-year old opinion may be construed to be at odds with current regulations, the regulations are obviously controlling." Id. at 8. The Rome Housing Authority conformance decision is distinguished from the instant conformance request, with the Administrator observing that his decision in the New York conformance case "did not allow the addition of a helper classification, but merely allowed a lower rate to be conformed to the wage determination for the mechanic classification." Id. at 6 n.3.

   Analysis There can be little question that the Administrator's decision to stop issuing elevator constructor helper wage rates as part of the Davis- Bacon wage determination process represented a notable change from long-standing practice. Although this Board (like its predecessor, the Wage Appeals Board) extends broad deference to the Administrator in interpreting the statute and regulations, the level of deference is diminished if "an interpretation [of the Administrator] . . . is unreasonable in some sense or . . . exhibits an unexplained departure from past determinations." Titan IV Mobile Service Tower, WAB Case No. 89-14 (May 10, 1991), slip op. at 7, citing Udall v. Tallman, 380 U.S. 1, 16- 17 (1965). The Supreme Court has held that heightened scrutiny is merited by an adjudicator where an agency's interpretation of a statute or regulation is a departure from prior interpretations. INS v. Cardoza-Fonseca, 480 U.S. 421, 446 n. 30.

   Although the Administrator's decision to stop recognizing the elevator helper constructor classification might appear at first to fall within this category of "changed interpretation," on closer examination it is clear that the core elements of the Administrator's policy regarding the 3-part helper test did not change at all in these cases. Leaving aside the period when the 1982-1989 helper regulation was being developed and implemented, the Administrator's articulation of the three elements of the helper test has been unchanged since the 1970's, if not before. Certainly by the time the 1982-89 helper regulation was suspended in 1993, the Administrator's articulation of the 3-part test was crystal clear. See 58 Fed. Reg. 58954 (Nov. 5, 1993). Thus, we are not really confronted in these cases with a change of policy, but with a reexamination of the facts and circumstances surrounding the elevator constructor helper classification, and how the 3-part test applies.

   We consider first Mid-American's argument that the Administrator's decisions not to conform the elevator helper classification result in a staffing pattern that is inconsistent with locally prevailing practice. All of the elevator industry parties (Mid-American, Miami and IUEC) appear to be in agreement about the basic organization of elevator construction work, which most often revolves around paired crews of mechanics and helpers. Accepting this as true, and even accepting Mid-American's argument that the Administrator's denial of the conformance request produces a staffing pattern that is out-of-sync with prevailing practice, it does not follow that the Administrator's decision is in conflict with either the statute or regulations and must be reversed.

   In this regard, we note that the oft-repeated declaration that the purpose of the Davis-Bacon Act is to "hold . . . a mirror up to local prevailing wage conditions and reflect . . . them" on federal construction projects is a simplistic and inaccurate characterization of the statute. Reply - Mid-Am at 4, quoting Hawk View, slip op. at 8. The statute is more complex than this. The goal of the Davis-Bacon Act is to ensure that the federal government's construction program does not subvert local wage structures. To accomplish this objective, Congress has mandated that laborers and mechanics working on federal construction contracts must be paid no less than the local prevailing wage for their job classification, as determined by the Secretary of Labor. 40 U.S.C. §276a. Within the federal government, the Secretary is designated as the central authority responsible for devising the Act's overall enforcement scheme. Reorganization Plan No. 14 of 1950, 5 U.S.C. Appendix.

   From a purely logical standpoint, the underlying premise of the Davis-Bacon prevailing wage law is inconsistent with Mid-American's claim that wage patterns on federal construction projects simply should "mirror" local wage rates. After all, it is virtually inevitable that some laborers and mechanics who work in a given jurisdiction are paid less than the prevailing wage rates determined by the Secretary, yet the congressionally- mandated prevailing wage scheme requires that all construction workers be paid not-less- than the prevailing rate when employed on a federal construction contract even those workers who might otherwise be employed on non-Federal projects in the local construction industry at lower pay scales. The goal of the Act is not merely to replicate (or "mirror") the full range of local pay scales, but to require that workers be paid at least the prevailing rate.

a helper classification, then the Wage and Hour Division automatically should recognize the collectively-bargained helper classification and publish a helper wage rate arguably, without a detailed evaluation of the classification under the 3-part helper test. If this were the Administrator's policy, then a strong argument could be made that the elevator helper classification should be recognized. However, when viewed in the broader context, we agree with the Administrator that neither Hawk View nor Opinion WH-202 compels a reversal of the Administrator's decisions in these cases.

   Leaving aside the period when the 1982-1989 helper regulation was at issue, it is clear that the Administrator's articulated 3-part test for recognizing helpers has been unchanged for more than 20 years, and this test repeatedly was endorsed by the Wage Appeals Board acting on behalf of the Secretary. See cases cited at p. 5, supra. Moreover, although not formally codified, the 3-part test explicitly is declared as the Administrator's standard in the 1993 notice suspending the helper regulations. 58 Fed. Reg. 58954 (Nov. 5, 1993). In light of this history, we share the Administrator's view that the majority opinion in Hawk View must be viewed as an aberration tied to the specific facts confronting the Board in the case, and not precedential. As best we can determine, Hawk View is the only decision of the Wage Appeals Board or the Administrative Review Board which adopts a helper classification because it is found within a prevailing collective bargaining agreement; as such, it stands in sharp contrast both to earlier and later decisions in which collectively-bargained helper classifications are rejected if they do not meet the standards of the 3-part helper test. The Board's decision in Hawk View reflects a level of deference to privately-negotiated arrangements between employers and labor unions that is inconsistent with the Administrator's declared policy on helpers, a policy that is not dependent in any way on the existence or non-existence of collectively-bargained helper rates. We need not decide here whether or under what circumstances the Administrator might lawfully adopt a policy of recognizing helper job classifications simply because they appear in collective bargaining agreements; the question is not presented in these cases. What is significant, however, is that the Wage Appeals Board in Hawk View accorded insufficient deference to the Administrator's lawful policy.

   The Davis-Bacon Act offers little guidance regarding the methodology to be used by the Secretary when determining the classifications of laborers and mechanics and the associated prevailing wage rates, other than a specific statutory definition for the term "locality." Because the statute is so spare in providing direction to the Secretary, rarely are there interpretive questions that can be determined directly by an adjudicator based on the traditional tools of statutory interpretation; instead, the more common function of the Board is to review the Administrator's interpretation of the statute to determine whether the Administrator's construction is a permissible construction of the statute, so long as it is consistent with congressional intent. Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 (1984). This evaluation of the agency's action relies upon such factors as the statutory scheme, structure and goals; legislative intent, the quality of the agency's reasoning, and the agency's consistency (or, if the agency interpretation represents a change of policy, its reasons for making the change). OFCCP v. Keebler, ARB Case No. 97-127, ALJ Case No. 87-OFC-20 (Dec. 21, 1999), slip op. at 17, citing Morton v. Ruiz, 415 U.S. 199, 237 (1974). In our view, this was the task confronting the Wage Appeals Board in reviewing the Administrator's conformance decision in Hawk View.

   Because the Board in Hawk View did not repudiate the Administrator's basic standard for approving helper classifications, the decision reversing the Administrator only can be explained as being limited to the peculiar facts of the case.

   With regard to the concurring opinion of Member Dunn, which apparently would direct the Administrator to adopt any helper classification that appears in a collective bargaining agreement in situations where union wage rates are found to prevail, we note our disagreement. In light of the Administrator's declared policy on helpers when the decision was issued in 1986 (i.e., a period when the 1982 helper regulation was not being enforced, and the 3-part test effectively was the Administrator's enforcement policy), the concurrence reflects a significant overreaching in its view of the Board's role.

   Opinion WH-202 The 1973 Wage and Hour Division opinion letter cited by Miami is ambiguous. Like the Dunn concurrence in Hawk View, the opinion letter suggests that for crafts in which the local union wage rate prevails, the Division will publish a helper wage rate when it appears as part of the (prevailing) collective bargaining agreement. However, akin to the 3-part helper test, the opinion letter also notes that a helper rate will not be recognized if it is determined that the helper is a participant in an informal training program.

   Advisory opinions issued by the Wage and Hour Division have limited precedential significance. They can be relied upon by employers as a defense to an enforcement action until such time as they are "rescinded, modified, or determined by judicial authority to be invalid." 29 C.F.R. §790.17(h). One court has observed that such advisory opinions are "expressly issued subject to change by the Administrator," and the advice offered is not valid for any period after the Administrator has announced a change in policy. Taylor- Callahan-Coleman Counties District Adult Probation Dep't v. Dole, 948 F.2d 953, 957 (5th Cir. 1991), citing 29 C.F.R. §790.17(h) - (i).

   We note first that the two cases before this Board are denials of conformance requests, and are not enforcement actions. This difference plainly diminishes any precedential significance that Opinion WH-202 might otherwise possess. But more important, excepting for the moment the period when the 1982-1989 helper regulation was at issue, since the mid-1970s both the Administrator and the Board repeatedly have stated that the controlling standard for recognizing helpers is the 3-part test, including the definitive policy statement in the 1993 suspension regulation. We therefore agree with the Administrator that the 1973 opinion letter effectively has been rescinded by subsequent DOL policy declarations on this issue.

   With regard to the Rome Housing Authority conformance matter, we agree with the Administrator that it is distinguishable from these cases. In the Miami and Mid-American cases, the wage determinations already included a prevailing wage rate for the elevator mechanic classification, and the contractors requested the addition of the elevator constructor helper classification. In contrast, the Rome Housing Authority matter involved a request that both a mechanic and helper rate be added to the wage determination. The Administrator declined to conform the helper classification, observing that it did not meet the 3-part test, but agreed to add the mechanic classification at the helper wage rate. Although we are unclear why this choice was made, the fact is that the Administrator's application of the 3-part test in the Rome Housing Authority matter was no different from his actions in these cases. We note also that the Board has consistently held that a party seeking a conformed rate may not rely on a wage determination granted to another party, regardless of the similarity of work in question. See, e.g., J.A. Languet Construction Company, WAB Case No. 94-18 (Apr. 27, 1995).