BUILDING
CONSTRUCTION
Review of Davis-Bacon Wage Decisions 77-TX-4190 through 77-TX-4207 and
related decisions in Texas
WAB 77-23
The new definition of "building" construction published by Wage-Hour in its
wage determinations and which included sheltered enclosures used to house machinery and
equipment cannot be applied to the construction of the subject water and sewer treatment plant.
In the present case there is a legitimate dispute as to the category of construction into which the
contract work properly falls. This definition is in the nature of a rule and if a definition is deemed
desirable, it should be adopted in accordance with rulemaking procedures. Use of this definition
is to be discontinued until it can be properly adopted.
Construction of Waco Metropolitan Area Regional Sewerage System
WAB 83-4, April 22, 1983
The determination of the Wage and Hour Division that heavy construction
wage rates should apply to the construction of the entire Waco Metropolitan Area Regional
Sewerage System Improvement Project with the exception of the administration building
alteration, the main building, the shop building and the storage building which were to be built
pursuant to building construction rates, is upheld.
The practice set forth in South Cobb Waste Water Treatment
Plant, WAB-76-19, which affirmed the practice of issuing both heavy and building
wage rate schedules for project. properly characterized as involving more than one category of
construction is correct and should be followed by the Wage and Hour Division.
Wage Rates for Biscayne Retirement Home
WAB 83-2, March 16, 1983
A three-story health care center for convalescent purposes consisting of
120 beds, each floor being served by a nurses' station and other medical equipment is not a
project of a character similar to the usual low-rise residential apartment or single family home
from which the residential wage rate information is compiled in wage and home surveys. Such a
facility is more similar to hotel, motel, clinic, hospital, dormitory, barrack or low rise commercial
construction, all of which are included in the general category of building construction and are
issued building construction wage rates by the Wage and Hour Division.
Largo Landing Fellowship House
WAB 82-24, March 11, 1983
Building construction wage rates, and not residential rates, were correctly
applied to construction of the subject project, a six-story, 106 unit apartment building with
elevator, to be used for housing the elderly and handicapped.
Wage Rates Applicable to Construction of 69th Street Wastewater Treatment
Plant, Houston, TX
WAB 77-29, March 3, 1978
In the construction of the subject wastewater treatment plant, the heavy
construction wage schedule should be applied to the filter beds and contact chambers. The
changes in the design and construction of the beds and chambers resulting from the addition of a
concrete slab and administrative office building on top of the beds and chambers were not
substantial enough to change the traditional characterization of the construction of the beds and
chambers from heavy to building construction.
The Board's decision in Brown's Mill Road Bus
Facilities, WAB Case No. 75-11, does not require it to consider the bids and chambers
as incidental to the building. Particularly this is so where there has been a common practice of
dividing those plants between building and heavy construction and the structure can be easily
divided into its building and heavy construction components.
Wage Rates Applicable to Construction of East Lake Station Site Improvements
and Parking Lots
WAB 78-5, March 23, 1978
The Assistant Administrator correctly ruled that the construction of two
parking lots, although performed under separate contracts, was "incidental" to the
construction of the MARIA Bast Lake Station, and that therefore the building wage schedule was
applicable to construction of the parking lots as well as the station. The "incidental"
rule policy is a long standing Wage-Hour policy that has been reviewed and approve by
Congressional Oversight Committee and the Wage Appeals Board, and is not invalid under the
Administrative Procedure Act. The Davis-Bacon Act refers to projects of a character similar, not
similar work as the basis of determining prevailing wage rates.
Review of Davis-Bacon Wage Decisions 77-TX-4190 through 77-TX-4207 and
related decisions in Texas
WAB 77-23
The new definition of "building" construction published by
Wage-Hour in its wage determinations and which included sheltered enclosures used to house
machinery and equipment cannot be applied to the construction of the subject water and newer
treatment plant. In the present case there is a legitimate dispute as to the category of construction
into which the contract work properly falls. This definition is in the nature of a rule and if a
definition is deemed desirable, it should be adopted in accordance with rulemaking procedures.
Use of this definition is to be discontinued until it can be properly adopted.
Prevailing Wage Rates Applicable to the Construction of Lower Potomac
Pollution Control Plant
WAB 77-20, Sept. 30, 1971
The Assistant Administrator correctly issued both building and heavy
wage rates to apply to construction of the subject water and sewer treatment plant even though a
recent survey in the area demonstrated that only a single det of wage rates had been paid on such
plants. When it is clear from the nature of the project itself in a construction sense that it is to be
categorized as either building, heavy, or highway, it is not necessary to resort to area practice to
determine the appropriate categorizations of the project. However, wage rate information from
the survey may be used to establish prevailing building or heavy wage schedules to be used in
the county.
Review of Davis-Bacon Wage Decision 77-TX-4174 through 4189 and related
decisions in Texas
WAB 77-19, Dec. 30, 1977
The Assistant Administrator incorrectly omitted wage rates for paving and
Utilities incidental to General Building Construction. from a series of wage determinations for
building Instruction recently issued in Texas. The record indicates hat in Texas one set of rates
prevail for building construction and a different set of rates prevail for the incidental paving and
utilities related thereto. This case is distinguishable from the decision in Lower Potomac
Pollution Control Plant, WAB 77-20, in which the project consisted of both heavy and
building construction, and the incidental work does not become heavy-highway because lower
rates are paid on it.
Prevailing Wage Rates Applicable to South Cobb Waste Water Treatment
Plant
WAB 76-19, Nov. 19, 1976
Wage-Hour erred in issuing only a building schedule for the water and
sewer treatment plant to be constructed in Cobb County, and is directed to modify the wage
decision to also include a heavy construction wage schedule. It is Wage-Hour's general practice
to issue two schedules for such projects, and there is no factual basis for issuing just the building
schedule in this case.
Prevailing wage rates applicable to the construction of Edgewood Terrace
II
WAB 73-2, April 4, 1973
Petitioners request that only wage data on high-use residential projects,
rather than building construction projects in general, be considered in determining the prevailing
wage rates for the subject high-use residential project is denied. The planning, architectural
factors, construction and development characteristics of high-use residential construction place it
in the same category as other highuse building construction in the District of Columbia. The
question is whether the industry itself has, in recognition of a local situation, carved such projects
out of the general building schedule for wage rate purposes.
Prevailing wage rates applicable to construction of Wisconsin Avenue Nursing
Rome, Washington, D.C.
WAB 72-9, Oct. 24, 1972
The wage rates for general building construction are applicable to
construction of the subject project, an eight story nursing home. Construction experience in the
District has accepted and continues to accept the idea that nursing home construction, even when
less than four stories in height, has been considered general building and that the majority of
laborers and mechanics employed on such construction have been paid at the general building
rate schedules.
Petitioner has a two-step burden to justify setting aside the decision of
ESA's Wage Determination Branch. The first step is to establish that nursing homes of the type
of construction here involved is not a project of character similar to the type of construction in
the area which has been constructed under the general building wage rate schedule. The second
step is a showing that the appropriate wage rate schedule applicable to nursing homes in the area
should then be the wage rates paid a majority of workers on high-rise residential construction or
some other type of construction. The Board need not reach the second step because petitioner has
not made a sufficient showing on the basis of planning, development, engineering, architectural
and construction factors that the Wage Determination Branch was in error in continuing to
classify nursing home construction along with other types of general business construction.
Prevailing wage rates applicable to the construction of
Abbott House (Cedar Lane Apartments), and similar construction projects
WAB 72-5, July 24, 1972
Wage predeterminations must be predicated upon careful scrutiny of the
facts and circumstances in each case and on a locality-by-locality basis. The
Mattapony rule, namely, that high-rise residential construction calls for the
application of the commercial or general building construction scale of wages and that
garden-type or walk-up multi-family residential construction calls for lower wage rates,
enunciated the
current area practice followed by the construction industry in that area at that time. St did not
establish a principle to be applied throughout the country. No doubt, in many instances involving
high-rise residential construction, the Division will find commercial rates prevailing and appli-
cable. The factual situation in this case appears otherwise, and would seem to fall within the
Board's recognition as expressed in the Mattapony and
Stevenson cases that a petitioner could establish as area practice that high-rise
residential construction is in fact constructed by laborers and mechanics employed at wage rates
lower than the recognized commercial wage scale.
Determination of the Prevailing wane rates applicable to construction of the
Stevenson Apartments
WAB 70-7, Jan. 14, 1971
In a locality where two sets of rates applied to apartment construction, the
lower rate applying to garden-type, multi-family residential construction, and the higher rate to
all other types of apartment construction, the Board reaffirms the principle enunciated in the
Mattapony decision, WAB 64-2, June 29, 1965, that normally high-rise
apartment construction is considered general building construction and takes the higher wage
rates. However, the case is remanded to the Wage Determination Board for examination of the
payment practices with respect to high-rise residential construction in order to determine whether
the building and construction industry has accepted the exclusion of high-rise residential
construction from the general building construction category for wage rate purposes.
Prevailing wage rates applicable to the construction of Abbott House (Cedar Lane
Apartments), and similar construction Projects
WAB 72-5, July 24, 1972
Wage predeterminations must be predicated upon careful scrutiny of the
facts and circumstances in each ease and on a locality-by-locality basis. The
Mattapony rule, namely, that high-rise residential construction calls for the
application of the commercial or general building construction scale of wages and that
garden-type or walk-up multi-family residential construction calls for lower wage rates,
enunciated the
current area practice followed by the construction industry in that area at that time. It did not
establish a principle to be applied throughout the country. No doubt, in many instances involving
high-rise residential construction, the Division will find commercial rates prevailing and applic-
able. The factual situation in this ease appears otherwise, and would seem to fall within the
Board's recognition as expressed in the Mattapony and
Stevenson eases that a petitioner could establish as area practice that high-rise
residential construction is in faet constructed by laborers and mechanics employed at wage rates
lower than the recognized commercial wage scale.
Determination of the prevailing wage rates applicable to construction of the
Stevenson Apartments
WAB 70-7, Jan. 14, 1971
In a locality where two sets of rates applied to apartment construction, the
lower rate applying to garden-type, multi-family residential construction, and the higher rate to
all other types of apartment construction, the Board reaffirms the principle enunciated in the
Mattapony decision, WAB 64-2, June 29, 1965, that normally high-rise
apartment construction is considered general building construction and takes the higher wage
rates. however, the case is remanded to the Wage Determination Board for examination of the
payment practices with respect to high-rise residential construction in order to determine whether
the building and construction industry has accepted the exclusion of high-rise residential
construction from the general building construction category for wage rate purposes.
Cherry Hill Construction, Inc.
WAB Case No. 85-27, October 2, 1987
The Board rejects petitioner's contention that it is not the responsibility of
subcontractors when submitting their proposals to prime contractors to determine whether the
building or heavy schedule contained in the wage determination applies to the project. Bidding
contractor. must assume this responsibility and the applicable regulations at 29 CFR 1.6(b) and
5.13 provide procedures to follow when a bidding contractor has any doubt with respect to the
way in which the Davis-Bacon Act and wage determinations will be applied.
Green Island Associates
WAB Case No. 86-21, August 7, 1987
The gutting, refurbishing and reconstructing of the interior of the
Sagamore Hotel falls within the category of building construction, and the Wage and Hour
Division need not look at residential construction wage data in making the applicable wage
determination.
Yuma Desalting Plant
WAB Case No. 84-23, January 23, 1985
The majority of the Board affirms the Wage and Hour practice of issuing
both heavy and building wage rate schedules for projects properly characterized as involving
construction identified as building construction and as heavy construction. An exception to this
rule exists when area practice dictates one mingle wage schedule prevails on a project as the
result of the practices of local contractors performing similar projects in the area. In this matter,
the area practice doe. not su W ort such an exception.
Five pre-engineered metal structures with reinforced concrete foundations
and floor slabs were only housing incidental to the equipment and machinery that was a part of
the treatment process of the desalting plan. This work should be classified an heavy construction.
The construction of the desalting building foundations and superstructures,
including interior work, bear the characteristics of a building construction project, and should be
characterized as building construction. However, two-thirds of the desalting structure contains
equipment devoted to the desalting process, and installation of this equipment should be
characterized as heavy construction.
CONTRACT WORK HOURS AND
SAFETY STANDARDS ACT LIQUIDATED DAMAGES
American Mutual Protective Bureau
WAB 77-5, Sept. 13, 1978
Department of Labor Regulation 29 CFR 5.8 clearly states that a contractor
assessed liquidated damages may be relieved of liability for its payment only under
circumstances where the contractor violated the provisions of the Contract Work Hours and
Safety Standards Act inadvertently notwithstanding the exercise of due care on his part.
Although in this case petitioner's failure to pay overtime may have been inadvertent, his failure
to read his contract and thereby inform himself and his bookkeeper of the requirements with
regard to overtime compensation for his employees cannot be construed as exercising due care.
Kenneth E. Brown Construction Co., Inc.
WAB Case No. 84-17, March 12, 1985
The Board affirmed the Administrator's decision denying the contracting
agency's recommendation that liquidated damages be waived. The contractor had a history of
overtime violations. The Board was unable to consider petitioner's argument that no violations
occurred because the employees were in fact "subcontractors". The question of
violations was not properly before the Board; the Administrator's decision being appealed did not
involve this issue.
Major Associates, Inc.
WAB Case No. 84-14, May 20, 1985
Contractor submitted falsified payrolls showing employees working five
8-hour days when they actually worked four 10-hour days. This concealment, whether caused by
contractor or his agents, shows violations were not "inadvertent" and that contractor
did not exercise "due care". Thus liquidated damages may not be waived.
Liquidated damages under the Contract Work Hours and Safety Standards
Act were adjusted to a lower amount, as the violations were not flagrant. This, coupled with the
fact that petitioner performed previous government contracts with no known violations led the
Board to believe that violations did not warrant the full assessment.
Bright Construction Company, & Trac Excavating Company
WAB Case No. 85-3, October 1, 1985
Liquidated damages can be reduced where the factual situation shows the
violations in a case do not warrant the full assessment regardless of instances where the payrolls
were falsified.
The overtime violations and falsification of payrolls were the acts of the
subcontractor. The prevention and/or detection thereof is not always a simple task by a prime
contractor's most diligent efforts and careful procedures implemented to snare violating
subcontractors. This, coupled with the fact that the petitioner has shown that it may not be able to
seek relief from the subcontractor, leads the Board to believe that the violations in this case do
not warrant the full assessment of liquidated damages.
Moorhead Construction Co., Inc.
WAB Case No. 85-25, January 21, 1986
Secretary of Labor does not have jurisdiction to waive liquidated damages
which were assessed in the full amount by the contracting agency under the Contract Work
Hours and Safety Standards Act.
Puckett, Taul & Underwood, Inc.
WAB Case No. 85-7, July 23, 1985
Concealment by submission of falsified payrolls shows violations were not
"inadvertent" and that petitioner did not exercise "due care". Thus
assessment of liquidated damages should not be waived.
The Board can exercise equitable relief to reduce liquidated damages, but
the facts do not warrant such relief in this case.
Pizzaqalli Construction Company, and R. L. Brooks
WAB Case No. 83-15, December 18, 1985
Liquidated damages should not be waived where falsified payrolls have
been submitted. However, liquidated damages can be reduced where the factual situation Shows
the violations do not warrant the full assessment. To determine whether the full assessment of
liquidated damages is mandated, it in necessary to examine the facts on a case by case basin. In
such cases the Board is exercising equitable relief which it considers to be a fair adjustment
commensurate with the violations.
In this matter, a lower assessment was warranted by the facts that there was
a short period of overtime violations, a small amount of violations, and the employees demanded
4 days of 40 hours with weekends off to return home and threatened job disruption.
Harrv Johnson Plumbing Co., Inc.
WAB Case No. 84-19, June 6, 1985
Liquidated damages were not fully assessed but were adjusted lower by the
Board for a first time government contractor where overtime violations were not flagrant.
Although the agency head recommended waiver of damages, the Board upheld the
Administrator's denial of a waiver and ruled that where there is a submission of falsified payrolls,
the assessment of liquidated damages should not be waived.
Abernathv and Wood
WAB Case No. 87-41, January 9, 1990
The Board reversed the decision of the Administrator, and in no doing
agreed with the Department of Housing and Urban Development that liquidated damages
assessed against the prime contractor for a subcontractor's violations should be waived. The
Board concluded it was reasonable for the prime contractor to have believed it had Nettled all
claims with it. agreement to pay the subcontractor's violations.
CONTRACTING AGENCY
ADVICE
Jos. J. Brunetti Construction Co. & Dorson Electric & Supply Co.,
Inc.
WAB Case No. 80-9, November 18, 1982
Contractor's reliance on advice and directions from an official of FAR that
the appropriate wage rate for the classification of electricians was the rate listed for "family
residence construction not to exceed 4 unit apartments" rather than the rate for "other
residiential constuction. was misplaced. The FHA definition of a "building" in terms
of fire walls for fire protection has very little to do with the interpretation of a labor contract and
of local area practice as to whether a garden type apartment project consists of family residences
of less than five unit apartments.
Metropolitan Rehabilitation Corp.
WAB 78-25, Aug. 2, 1979
Petitioner's reliance on contracting officer's advice regarding the
appropriateness of wage rate does not relieve petitioner of responsibility to pay the correct wage
rates to employees for two reasons --(1) the contracting officer's advice is not binding on the
Department of Labor and does not estop DOL from requiring the payment of proper wages.
Reorg. Plan No.14 gives DOL final authority in this regard, (2) the estoppel argument would not
be binding on the laborers and mechanics themselves so as to cut off any individual rights they
may have under the Davis-Bacon Act to receive the proper wage rate.
The Davis-Bacon Act was intended to protect rights of laborers and
mechanics employed on projects and not to protect contractors from bad advice given by
someone without final authority. U.S. v. Binahampton Const. Co.,347 U.S.
171 (1954).
Installation of Conveyor System, Naval Supply Center
WAB 78-24, April 6, 1979
The Board cannot, once the contract has been awarded and work
completed, issue a ruling with reference to this contract which would affect the wage
requirements of the contract. The Contracting Officer acted in good faith and in accordance with
the Department of Defense Acquisition Regulations in determining that the installation of the
system was incidental to the supply contract and therefore did not require Davis-Bacon coverage.
Tollefson Plumbing and Heating
WAB 78-17, Sept. 24, 1979
The Department of Labor is not estopped from requiring payment of
plumber's rates because nut misled the contractor and delayed in advising the contractor that its
apprentices were not being properly paid. Advice by a contracting agency is not binding on the
Department of Labor as DOL has the final authority in this regard under the statutes and Reorga-
nization Plan No. 14 of 1950.
Almeda-Sims Sludge Disoosal Plant Project
WAB 78-13, January 5, 1979
The Board does not agree with EPA's position that its regional office had
residual authority pursuant to the Federal Water Pollution Control Act, Reorganization Plan No.
14 of 1950 and AAM #68, to determine which wage schedule applied to the project. After the
Department of Labor advised EPA to use the building wage schedule, EPA acted improperly in
ignoring the directions of DOL.
Fry Brothers Corporation
WAB 76-6, June 14, 1977
Under the Portal-to-Portal Act (29 USC 259) only a written ruling of the
Secretary of Labor can be relied upon as a defense against liability for wages which must be paid
under the Davi.-Bacon Act. "Reliance" on an oral Statement by a local official of the
contracting agency cannot be a basis for finding that the contractor has complied with the labor
standards requirements of the National Dousing Act, which does not provide any "good
faith" exception.
Ross Brothers Construction Inc.
WAB Case No. 87-36, November 21, 1988
Petitioner contended Umpgua was a supplier or materialman, that it had
performed two earlier State projects on which it did not pay Davis-Bacon wages, and that prior to
starting the project, it relied on an Oregon Dept. of Transportation ruling that Davis-Bacon rates
were not applicable to their operation. However, the Board agreed with the Administrator that the
inadvertent failure to assert coverage on the two earlier federally assisted State highway projects,
cannot effect coverage of this project, and the fact that Umpqua's permit was specifically limited
to use on State projects (thus inhibiting sale of aggregate to the public) is determinative.
Concerning the alleged advice given by the State (which the State
representative denied), the Board stated it had held in a line of cases that only the Secretary of
Labor has the power to make rulings on Davis-Bacon issues, including coverage, and further
noted that it had previously held that advice by a lowerechelon Wage and Hour official would
not estop the subsequent, imposition of coverage.
COVERAGE
-
CONSTRUCTION ALTERATION OR REPAIR
Watertown Housing Authority
WAB 83-8, March 14, 1983
The Administrator's determination that a contract funded under the
Comprehensive Improvement Assistance Program (CIAP), for cleaning, repainting, and Dealing
of existing brick walls and the replacement of bricks where needed on two housing project. was
maintenance or deferred maintenance, and not "construction" subject to a
Davie-Bacon prevailing wage determination, will not be set aside in the absence of demonstrably
compelling reasons supplied by the petitioner.
Applicability of Davis-Bacon and Related Acts to certain work Performed be
employees of Alcoa Construction Systems, Inc.
WAB 75-6, Sept. 11, 1975
Despite petitioner's contention that its contracts with the prime contractor
were simply contracts which contemplated no onsite work other than might result under warranty
provisions, and that the amount of this work was insubstantial and incidental to the supply
contract, the Board held that the onsite repair work of factory prefabricated kitchen and bathroom
modules performed by employees of the firm which supplied the modular unit was subject to the
Davis-Bacon Act.
Compliance with the labor standards requirements of the Davis-Bacon and
Related Acts, Transpo 72 Project, Dulles International Airport, Va.
WAB 72-11, Feb. 28, 1973
A contract to lease, erect and remove prefabricated buildings for use as
business centers at the U.S. International Transportation Exposition was subject to Davis-Bacon
requirements. Looking at the transaction as a whole, the substantive general conditions
applicable to site work on Federally-owned property, the nature of the specifications for site
work, the working drawings, and the methods of payment, the Board concluded that the work in
question was a public work of the United States and that the procurement arrangement was a
contract for construction subject to the Davis-Bacon Act.
Woodslde Village
WAB 75-13, June 25, 1976
The cleaning work performed during construction, as well as the repair
work performed on prefabricated kitchen and bathroom units, was construction work covered by
the Davis-Bacon Act.
Thomas J. Clements, Inc.
WAB 84-12, January 25, 1985
The Board affirms the conclusion of the administrative law judge that
maintenance workers performing construction and rehabilitation work were subject to the
Davis-Bacon provisions.
Applicability of Davis-Bacon Act to Lease of Space for Outpatient Clinic, Crown
Point, Indiana
WAB Case No. 86-33, June 26, 1987
The Veterans Administration (VA) solicited bide from private developers
to construct a building for It to lease for 15 years with a 5-year option. This agreement is a
"contract for construction" as well as a lease. As stated in Military Housing.
Fort Drum, WAB No. 85-16, "[I]t has been the traditional position of the
Department of Labor that If more than an incidental amount of construction-type activity is
involved in the performance of a government contract, the Davis-Bacon Act is applicable to that
work."
Military Housing, Fort Drum, N.Y.
WAB Case No. 85-16, August 23, 1985
An agreement authorized by the Military Construction Authorization Act
of 1984 to lease for 20 years family bousing units which are to be constructed off the military
base is a contract for construction of a public building on work subject to the Davis-Bacon Act.
It has been the traditional position of the Department of Labor that if more
than an incidental amount of construction activity is involved in the performance of government
contract, Davis-Bacon applies to that work.
COVERAGE -
MATERIALMAN
Applicability of the Davis-Bacon and Related Acts to Certain Fabrication
Activities of Ameron, Inc.
WAB 73-7, Sept. 14, 1973
Fabrication facilities built near the construction site to manufacture
concrete pipe exclusively for use on the federal project is part of the Waite of work. clubfeet to
the Davis-Bacon requirements. There is no evidence that the fabrication operation is that of a
materialman serving the general public.
Midway Excavators, Inc. and King Town Transportation, Inc.
WAB 81-17, Dec. 13, 1983
When a contractor was utilizing its trued driver employees to haul
materials from commercial suppliers to Davis-Bacon covered job sites, the contractor was acting
In the place of a Commercial supplier, and therefore the truck drivers were not covered by the
labor standards provisions of the Davis-Bacon and related Acts.
T.L. James and Company
WAB 69-2, August 13, 1969
Simply because a company has been a subcontractor on an earlier portion
of the job would not alone preclude this company from acting as a materialman on another and
distinct section of the project, if acting as such a materialman was independently justified on its
own considerations.
Applicability of the Davis-Bacon and Related Acts to work performed by Cox
Enterprises, Inc.
WAB 72-10, Jan. 29, 1973
Truck driver employees of Cox Enterprises who hauled fuel oil, road oil
and construction equipment from the joint headquarters of Cox Enterprises and Cox Construction
Company, prime contractor on the federal projects, to the federal construction sites were laborers
and mechanics covered by the Davis-Bacon provisions. Where a material supply firm is owned
and operated by the general contractor or a subcontractor construction firm on a government
contract, two situations may arise. If the material supply business Is maintained separately from
his construction operations, the employees hauling aggregates would not be covered under the
Davis-Bacon Act. However, if the contracting and material supply work is Intermingled, then
such hauling would be subject to the Davis-Bacon Act in its entirety. Cox Enterprises, organized
primarily to provide year-round employment Mr. Cox's key employees, cannot, by simply
transferring names of the employees from the Cox Construction Company, Inc., to the Cox
Enterprises, Inc. payroll, avoid his contract labor standards obligations. Cox Enterprises was not
in the hauling business and did not haul material for anyone other than the Cox Construction
Company. Although two corporations were involved, it was one operation with common owners
and employees.
D.A. Collins Construction Co.
WAB 81-4, September 20, 1984
An employer which contracted with the prime construction contractor to
furnish and deliver stone gravel for the construction contract, and which in turn contracted with
the owners of two borrow pits to obtain the stone and gravel requirements, performed the duties
of a subcontractor, and not a materialman, and thus was required to pay its employees working at
the two borrow pits the Davis-Bacon wage rates. Over 95 percent of the materials drawn from
one pit was utilized by the subject federal construction project and related federally assisted
projects, and the other pit had had no sales to the public in the prior seven years. The prima facie
case created by these facts is not rebutted by the owners' statements that they were willing to
make sales to the public, nor by minimal actual sales which cannot be called significant or
substantial when compared to the quantities required for Collins' highway project.
Applicability of the Davis-Bacon and Related Acts to work performed by Cox
Enterprises Inc.
WAB 72-10, Jan. 29, 1973
Truck driver employees of Cox Enterprises who hauled fuel oil, road oil
and construction equipment from the joint headquarters of Cox Enterprises and Cox Construction
Company, prime contractor on the federal projects, to the federal construction sites were laborers
and mechanics covered by the Davis-Bacon provisions. Where a material supply firm is owned
and operated by the general contractor or a subcontractor construction firm on a government
contract, two situations may arise. If the material supply business is maintained separately from
his construction operations, the employees hauling aggregates would not be covered under the
Davis-Bacon Act. However, if the contracting and material supply work is intermingled, then
such hauling would be subject to the Davis-Bacon Act in its entirety. Cox Enterprises, organized
primarily to provide year-round employment for Mr. Cox's key employees, cannot, by simply
transferring the names of the employees from the Cox Construction Company, Inc., to the Cox
Enterprises, Inc. payroll, avoid his contract labor standards obligations. Cox Enterprises was not
in the hauling business and did not haul material for anyone other than the Cox Construction
Company. Although two corporations were involved, it was one operation with common owners
and employees.
T.L. James and Company
WAB 69-2, August 13, 1969
Simply because a company has been a subcontractor on an earlier portion
of the job would not alone preclude this company from acting as a materialman on another and
distinct section of the project, if acting as such a materialman was independently justified on its
own considerations.
Howard W. Pence, Inc.
WAB 63-14, September 4, 1984
It was not the intent of the Board to exclude from coverage all truck
drivers employed by a construction prime contractor or subcontractor Who haul materials and
supplies from a commercial supplier to a Davis-Bacon or related Act covered job site. Only those
truck drivers employed by a company that qualifies as a bona flee materialman or truck drivers
employed by a firm acting in the place of a commercial supplier are excluded from coverage.
The Board is of the opinion that the language contained in 29 CFR 55.2(9)
which provides in part that ". . . the transporting of materials and supplies to and from the
building or work by the employees of the construction contractor or construction subcontractor . .
.. is within the meaning of the terms "construction," "prosecution," and
"completion," as utilized in the Davis-Bacon and related Acts was intended to cover
the situation presented by this case. This firm's operation was primarily to utilize construction
employees to transport materials and supplies to its construction site. Certainly while performing
this type of operation the firm was not a bona fide materialman nor was it acting in the place of a
commercial supplier.
Ontario Pipeline, Inc. & Farmington Concrete Products, Inc.
WAB 81-12 & 81-13, January 28, 1985
Farmington Concrete Products, Inc. was a subcontractor to Ontario and not
a materialman. Farmington entered into a contract with Ontario to manufacture and deliver
precast concrete manholes for a county-wide sewage system project. Within days of award of the
contract to Ontario, Farmington leased a site for 2 years within 10 miles of the project at which
to fabricate the manholes. The output of this operation was devoted exclusively, or nearly so, to
Ontario's requirements, and this fabrication plant was moved to another site immediately upon
completion-of Ontario's requirements for the project. In addition both Ontario and Farmington
are owned by one holding company. Employees at the fabrication plant and the truck drivers
hauling the manholes to the project were entitled to prevailing wages.
Ross Brothers Construction Inc.
WAB Case No. 87-36, November 21, 1988
The Board affirmed the Administrators ruling that work performed by
Umpqua Sand and Gravel at a sand and gravel bar 24 miles from Ross Bros.' highway project
was part of the "site of the work" and covered by the Davis-Bacon provisions.
Umpqua had obtained a temporary permit from the State of Oregon to use the sand bar only to
obtain aggregate for State highway projects. It set up a portable crushing plant at the bar and
trucked stone to a storage yard about 1/2 mile from the project.
Petitioner contended Umpqua was a supplier or materialman, that it had
performed two earlier State projects on which it did not pay Davis-Bacon wages, and that prior to
starting the project, it relied on an Oregon Dept. of Transportation ruling that Davis-Bacon rates
were not applicable to their operation. However, the Board agreed with the Administrator that the
inadvertent failure to assert coverage on the two earlier federally assisted State highway projects
cannot effect coverage of this project, and the fact that Umpqua's permit was specifically limited
to use on State projects (thus inhibiting sale of aggregate to the public) is determinative.
COVERAGE -
PUBLIC
WORKS
Compliance with the labor standards requirements of the Davis-Bacon and
Related Acts, Transno 72 Project, Dulles International Airport, Va.
WAB 72-11, Feb. 28, 1973
A contract to lease, erect and remove prefabricated buildings for use as
business centers at the U.S. International Transportation Exposition was subject to Davis-Bacon
requirements. Looking at the transaction as a whole, the substantive general conditions
applicable to site work on Federally-owned property, the nature of the specifications for site
work, the working drawings, and the methods of payment, the Board concluded that the work in
question we. a public work of the United States and that the procurement arrangement was a
contract for construction subject to the Davis-Bacon Act.
CTL Engineering, Construction of Relief Well System
WAB 80-7, July 22, 1983
Where subcontractor received a contract to drill pilot holes, collect core
samples, and analyze and submit soil data, and where the Davis-Bacon and Contract Work Hours
and Safety Standards labor standards provisions were included in both the prime contract and
subcontract, the Assistant Administrator correctly ruled that the pilot holes were "directly
related and incidental to, and an integral part of the actual construction of a public work"
and thus covered by the labor standards provisions.
Applicability of Davis-Bacon Act to Lease of Space for Outpatient Clinic, Crown
Point, Indiana
WAB Case No. 86-33, June 26, 1987
The Veterans Administration (VA) clinic is a public building. of the
United States covered by the Davis-Bacon Act. As in Ft. Drum, WAB No.
85-16, the building is designed for a special purpose and for all practical purposes may never be
used as a private building. The Board must follow the Department's definition of "public
building" found at 29 CFR 5.2(k). In applying the definition, it is clear the project is being
carried on directly by authority of the VA, and it serves the interest of the general public.
Military Housing, Fort Drum, N.Y.
WAB Case No. 85-16, August 23, 1985
An agreement authorized by the Military Construction Authorization Act
of 1984 to lease for 20 years family housing units which are to be constructed off the military
base is a contract for construction of a public building or work subject to the Davis-Bacon Act.
COVERAGE - SITE
OF
WORK
United Construction Company, Inc.
WAB 82-10, January 14, 1983
There is a prima facie presumption that supporting activities associated
with the primary project are covered by the labor standards provisions of the various acts. The
Word then looked at the evidence associated with the support activities to judge on a case by
case basin whether the activities are sufficiently independent of the primary project to determine
that the function of the support activities may be viewed as similar to that of a materialman and
therefore not subject to the coverage of the Davis-Bacon Act or related acts.
Petitioner's asphalt batch plant, which was located 1.8 miles to 55 miles
from various construction sites associated with the Truman dam and reservoir project was part of
the "site of work," and the work performed at the batch plant, as well as the truck
drivers delivering the asphalt to the various construction sites, were covered by the Davis Bacon
Act.
Mayfair Construction Co.
WAB 81-16, April 18, 1983
In the instant cane, where damaged acoustical modules were taken from
the actual construction site to be repaired at Petitioner's warehouse, 9 miles away, and then
returned to site for reinstallation, and where the work being performed at the warehouse was
exclusively performed to accomplish this construction activity, this functionalism controls and
the warehouse was part of the "site of work" for Davis-Bacon purposes.
Big Six, Inc.
WAB 75-3, July 21, 1975
Employee truck drivers of an independent trucking contractor who hauled
bituminous mix from a mix plant at an established commercial quarry to two federal projects
were covered by the Davis-Bacon provisions under the facts of this case.
Applicability of the Davis-Bacon Act to the quarrying and hauling operations of
Sweet Home Stone Company
WAB 75-1 and 75-2, August 14, 1975
Where an established commercial quarry operator opened three quarries to
exclusively supply Federal projects, its employees who were engaged in quarrying, loading, and
transporting stone from three quarries to the federal projects were covered by the Davis-Bacon
requirements. When a quarry is opened for the exclusive purpose of fulfilling a contract's
material requirements, the supplier is considered to have undertaken a part of the construction
work of the contract itself and is a subcontractor for purposes of the Davis-Bacon Act.
Applicability of the Davis-Bacon and Related Acts to Certain Fabrication
Activities of Ameron, Inc.
WAB 73-7, Sept. 14, 1973
Fabrication facilities built near the construction site to manufacture
concrete pipe exclusively for use on the federal project is part of the Site of work. subject to the
Davis-Bacon requirements. there is no evidence that the fabrication operation is that of a
materialman serving the general public.
T.L. James and Company
WAB 69-2, August 13, 1969
Where but for the contemplated construction of a highway project in the
locality, borrow pits or waste areas would not be opened, the opening of such pits or areas
primarily in and substantially devoted to the prosecution of the highway work will establish a
Paprika facie. case that the work performed in connection with the borrow pits or waste areas as
a part of the construction activity of the project, and the employees who do the work are covered.
In this regard the concept of The site of work. is a matter of minor or no significance.
ABC Paving Co., and ECO Bridge Inc.
WAB Case No. 85-14, September 27, 1985
A rented warehouse three miles from highway construction project where
barrier sound walls were assembled is part of the site of work. Thus, the warehouse assembly
workers at the warehouse and the truck drivers who delivered the assembled panels to the job
mite were due Davis-Bacon prevailing wages. Petitioner's work at the warehouse was exclusively
performed to accomplish construction activity. This functionalism controls the Board's decision
on theme facts. The geographic question of three miles distance is only one aspect of the
question and under these facts it is not controlling.
ATCO Construction, Inc.
WAB Case No. 86-1, August 22, 1986
Temporary fabrication shop for modular housing units in Portland,
Oregon, 3000 miles from Adak Naval Air Station, Alaska, where housing units were to be
erected, is part of the site of work for Davis-Bacon purposes. Therefore, Board reversed and
remanded a Wage and Hour ruling that the Oregon Rite was not covered. Both functional and
geographic tests apply in determining elite of works. Portland, Oregon was an close in the conti-
nental United States as Bayou can get to Adak. and the houses were substantially built in
Portland and assembled on a concrete slab before shipment to Alaska. Although fabrication is
generally not covered by the Davis-Bacon Act, the temporary fabrication framing shop was
located in reasonable proximity to actual construction location and therefore was part of the mite
of work.
Ross Brothers Construction, Inc.
WAB Case No. 87-36, November 21, 1988
The Board affirmed the Administrator's ruling that work performed by
Umpqua Sand and Gravel at a sand and gravel bar 24 miles from Ross Bros.' highway project
was part of the "cite of the work" and covered by the Davis-Bacon provisions.
Umpqua had obtained a temporary permit from the State of Oregon to use the sand bar only to
obtain aggregate for State highway projects. It set up a portable crushing plant at the bar and
trucked stone to a storage yard about 1/2 mile from the project.
Petitioner contended Umpqua was a supplier or materialman, that it had
performed two earlier State projects on which it did not pay Davis-Bacon wages, and that prior to
starting the project, it relied on an Oregon Dept. of Transportation ruling that Davis-Bacon rates
were not applicable to their operation. However, the Board agreed with the Administrator that the
inadvertent failure to assert coverage on the two earlier federally assisted State highway projects,
cannot effect coverage of this project, and the fact that Umpgua's permit was specifically limited
to use on State projects (thus inhibiting sale of aggregate to the public) is determinative.
COVERAGE -
SUBCONTRACTORS
Edwards Furnace Company. Inc.
WAB 77-28, Sept. 18, 1978
Four carpenters, despite the fact that they bad signed contracts with the
contractor and were allegedly subcontractors, were not bona fide subcontractors because none
had any prior or subsequent contracting experience, they were being paid hourly wages and one
wee receiving fringe benefits they had no office address, or stationery, and the contracts signed
by the carpenters indicated that the petitioner agreed to furnish the materials for completion of
the project: and the carpenters were to provide only tools and labor. This is the same arrangement
that an employer has with an employee. The contracts were a subterfuge to avoid the prevailing
wage statutes. The carpenters, therefore, cannot be considered bona fide subcontractors.
Applicability of the Davis-Bacon Act to the quarrying and hauling operations of
Sweet Rome Stone Company
WAB 75-1 and 75-2, August 14, 1975
Where an established commercial quarry operator opened three quarries to
exclusively supply Federal projects, its employees who were engaged in quarrying, loading, and
transporting stone from three quarries to the federal projects were covered by the Davis-Bacon
requirements. When a quarry is opened for the exclusive purpose of fulfilling a contract's
material requirements, the supplier is considered to have undertaken a part of the construction
work of the contract itself and is a subcontractor for purposes of the Davis-Bacon Act.
Maryland Equipment, Inc.
WAB Case No. 85-24, June 13, 1986
The Board upheld the ruling of the administrative law judge that Maryland
Equipment was a subcontractor subject to Davis-Bacon requirements, not an independent trucker
for materialmen, when it performed a specific part of the original contract calling for clearing
and disposal of excavated materials. The prime contractor had contracted with BHB Trucking
Company to load, haul, and dispose of the excavated materials. BHB Trucking sold the material
to Brandywine Sand and Gravel Company and Eco-Rok, Inc., which in turn hired Maryland
Equipment, a trucking company, to haul the rock. and gravel from the construction site to Eco-
Rok and Brandywine facilities for crushing.
Progressive Design & Build Inc.
WAB Case No. 87-31, February 21, 1990
The Board reversed the conclusions of the Administrative Law Judge (1)
that the subcontractor was not subject to the Davis-Bacon provisions and not liable for back
wages because the labor standards provisions found in the prime contract were not physically
included in the subcontract, and (2) that debarment of the subcontractor was not warranted.
"The subcontracts all contained references to the applicable labor
standards provisions, albeit these provisions were marked "do not apply", and
incorporated them by reference into the subcontracts signed between Progressive and Halfway.
Even if Halfway did not know what its obligations were under the labor standards provisions, it
agreed to abide by these provisions in the subcontracts and cannot be permitted to avoid paying
its employees the wages they were entitled to by operation of law by claiming ignorance of the
provisions in question. These questions, if they were valid, could easily have been resolved by
inquiries directed to the contracting agencies."
COVERAGE - TRUCK
DRIVERS
Bin Six, Inc.
WAB 75-3, July 21, 1975
Employee truck drivers of an independent trucking contractor who hauled
bituminous mix from a mix plant at an established commercial quarry to two federal projects
were covered by the Davis-Bacon provisions under the facts of this case.
Applicability of the Davis-Bacon and Related Acts to work Performed by Cox
Enterprises, Inc.
WAB 72-10, Jan. 29, 1973
Truck driver employees of Cox Enterprises who hauled fuel oil, road oil
ant construction equipment from the joint headquarters of Cox Enterprises and Con Construction
Company, prime contractor on the federal projects, to the federal construction sites were laborers
and mechanics covered by the Davis-Bacon provisions. Where a material supply firm is owned
and operated by the general contractor or a subcontractor construction firm on a government
contract, two situations may arise. If the material supply business is maintained separately from
his construction operations, the employees hauling aggregates would not be covered under the
Davis-Bacon Act. However, if the contracting and material supply work is intermingled, then
such hauling would be subject to the Davis-Bacon Act in its entirety. Cox Enterprises, organized
primarily to provide year-round employment for Mr. Cox's key employees, cannot, by simply
transferring the names of the employees from the Cox Construction Company, Inc., to the Cox
Enterprises, Inc. payroll, avoid his contract labor standards obligations. Cox Enterprises was not
in the hauling business and did not haul material for anyone other than the Cox Construction
Company. Although two corporations were involved, it was one operation with common owners
and employees.
Midway Excavators, Inc. and King Town Transportation, Inc.
WAB 81-17, Dec. 13, 1983
When a contractor was utilizing its truck driver employees to haul
materials from commercial suppliers to Davis-Bacon covered job sites, the contractor was acting
in the place of a commercial supplier, and therefore the truck drivers were not covered by the
labor standards provisions of the Davis-Bacon and related Acts.
Midway Excavators, Inc. and King Town Transportation Inc.
WAB 81-17, Denial of Motion for Reconsideration, Feb 14, 1984
The truck drivers of both firms (which functioned as a single employer)
while performing trucking services for various third parties, materialmen and suppliers, and so
long as the petitioners' truck drivers merely delivered the supplies and performed no other
activities, are not covered by the Davis-Bacon and related Acts.
ABC Paving Co., and ECO Bridge Inc.
WAB Case No. 85-14, September 27, 1985
A rented warehouse three miles from highway construction project where
barrier sound walls were assembled is part of the site of work. Thus, the warehouse assembly
worker. at the warehouse and the truck drivers who delivered the assembled panels to the Job site
were due Davis-Bacon prevailing wages. Petitioner's work at the warehouse was exclusively
performed to accomplish construction activity. This functionalism controls the Board's decision
on these facts. The geographic question of three miles distance is only one aspect of the question
and under these facts it is not controlling.
Maryland Equipment, Inc.
WAB Case No. 85-24, June 13, 1986
The Board upheld the ruling of the administrative law judge that Maryland
Equipment was a subcontractor subject to Davis-Bacon requirements, not an independent trucker
for materialmen, when it performed a specific part of the original contract calling for clearing
and disposal of excavated materials. The prime contractor had contracted with BOB Trucking
Company to load, haul, and dispose of the excavated materials. BHB Trucking sold the material
to Brandywine Sand and Gravel Company and Eco-Rok, Inc., which in turn hired Maryland
Equipment, a trucking company, to haul the rocks and gravel from the construction site to
Eco-Rok and Brandywine facilities for crushing.