CCASE:
ALEUTIAN CONSTRUCTORS
DDATE:
19910927
TTEXT:
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[1] WAGE APPEALS BOARD
UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, D. C.
In the Matter of:
ALEUTIAN CONSTRUCTORS,
A Joint Venture
and WAB Case No. 91-22
WAB Case No. 91-28
UNIVERSAL SERVICES, INC.
Shemya Island, Alaska
BEFORE: Charles E. Shearer, Jr., Chairman
Ruth E. Peters, Member
Patrick J. O'Brien, Member
APPEARANCES: William G. Jeffery, Esq., for the Petitioners
William A. Isokait, Esq., for the Associated
General Contractors of America, Inc.
Douglas J. Davidson, Esq., and Ford F.
Newman, Esq., Office of the Solicitor, U.S.
Department of Labor, for the Wage and Hour
Division
DATED: September 27, 1991
DECISION OF THE WAGE APPEALS BOARD
These matters concern the application of the Davis-Bacon Act
to culinary and maintenance workers employed at a camp and engaged
in meeting the food and shelter needs of workers directly involved
in federal construction projects in Alaska. The matter was
originally before the Board on the joint petition of Aleutian
Constructors ("Aleutian" or "Petitioners") and Universal Services,
Inc. ("Universal") seeking review of December 20, 1989 rulings of
the Acting [1]
~2
[2] Administrator of the Wage and Hour Division
assessing $412,505.72 in prevailing and overtime wages for these 17
camp workers. Aleutian also challenged conformance rulings
relating to the maintenance workers.
An oral argument was held on March 5, 1991, followed by an
initial decision whereby this matter was remanded for further
proceedings. When the Wage and Hour Division repeated their
initial coverage claim and was either unable or unwilling to
perform an area wage survey (as ordered by the Board), Petitioners
again appealed. Another oral argument was held on August 28, 1991.
For the reasons stated below, the rulings of the Wage and Hour
Division with respect to the maintenance workers are reversed,
while the rulings with respect to the culinary workers are
affirmed.
I. BACKGROUND
From the early 1980's to the present, Aleutian has been
engaged in several defense-related Davis-Bacon construction
projects on Shemya Island in the Aleutian chain. Although the Air
Force monitors and limits access to (but not, apparently, egress
from) the island, state-of-the-art communications and frequent air
traffic links Shemya to the rest of the United States.
From 1985 to 1987, Aleutian performed the three contracts at
issue. It is undisputed that these contracts were governed by the
Davis-Bacon Act as well as the Contract Work Hours and Safety
Standards Act. It is also undisputed that the contracts contained
wage rates for culinary workers but not for maintenance workers
(janitors, housekeepers, and domestic helpers).
In 1985 Aleutian considered a number of ways to feed and
shelter its employees, and settled on the establishment of a work
camp through the use of a contractor, Universal. The camp at
Shemya opened in 1985, continues in operation to date, and is
available to "all comers;" indeed, in at least one year nearly half
of all available space was occupied by persons other than employees
of Aleutian or its subcontractors. When the Universal contract was
executed, Aleutian agreed to indemnify Universal for all
wage-related liabilities, but did not include the contractual wage
rates for culinary workers in the agreement.
The Department of Labor conducted an investigation of the camp
and concluded that the culinary and maintenance workers were not
being paid prevailing wage rates. Back prevailing and overtime
wages were calculated and withheld from Aleutian. [2]
~3
[3]
When the Wage and Hour rulings were appealed to the Wage
Appeals Board, the record and pleadings revealed that the Acting
Administrator had completely failed to set out a factual basis or
legal reasoning in support of his claim of Davis-Bacon coverage.
The record and pleadings at that time indicated that the
conformance procedure whereby the maintenance worker
classifications were added to the contracts was conducted without
the participation of the contractor. Accordingly, the
contracting officer violated the requirement of 29 C.F.R.
5.5(a)(ii)(C), which requires that officer to "refer the questions,
including the views of all interested parties . . . to the
Administrator. . . ." Instead, the conformed wage rate
determination was based exclusively on an expired collective
bargaining agreement, a document of no legal significance and only
marginal factual relevance.
Accordingly, the matter was remanded on April 1, 1991, with
instructions to make a Davis-Bacon coverage determination, and, if
coverage was found, to survey wages paid to comparable classes of
employees on Shemya. The Board remanded "with the expectation that
the further proceedings . . . will be completed within 60 days."
Slip Op. at 4.
With ten days left in the remand period, the Solicitor's
Office asked for reconsideration. The Board denied the request and
reminded Wage and Hour of the deadline for compliance with the
April 1 Order. The Solicitor's Office responded that it was under
the impression that the 60 day limit was merely advisory or
precatory.
Shortly thereafter, on the last day of the remand period, Alan
L. Moss, Director of Wage and Hour's Division of Wage
Determinations, wrote a letter to Aleutian containing the
following:
As you know, on April 1, 1991, the Wage Appeals
Board (WAB) remanded the matter . . . to
the Wage and Hour Division. Since we have not
heard from you, we are now requesting your
views concerning the conformed wage rates on
the three contracts in question . . . .
Please submit this information within 30 days.
On that same day, May 31, 1991, Aleutian received a letter
from John R. Fraser, Acting Administrator of the Wage and Hour
Division, wherein Aleutian was informed that Wage and Hour had
determined the statutory coverage questions in the affirmative.
Specifically, Mr. Fraser ruled that the maintenance and culinary
workers were laborers and mechanics within the meaning of the
Davis-Bacon Act and that they were employed on the site of the
work.
The basis for the conclusion that the Aleutian employees were
"laborers and mechanics" within the meaning of the Act was based on
exclusively on 29 [3]
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[4] C.F.R. 5.2(m), which defines the protected
class to include "at least those workers whose duties are manual
or physical in nature . . . as distinguished from mental or
managerial." Mr. Fraser also found the tasks performed by the
maintenance and culinary workers essential to the completion of the
public buildings or works despite the exclusion of service and
maintenance work under 29 C.F.R. 5.2(i):
While the definition of the terms building and
work . . . [*generally*] excludes servicing or
maintenance work, it does include the
manufacturing or furnishing of materials, articles,
supplies, or equipment when conducted in
connection with and at the site of such a
building or work. There is no basis for
distinguishing the supply of food and lodging
performed by employees of a contractor or
subcontractor on the site of the work from the
act of furnishing other materials and articles
where both endeavors equally serve to support
the construction contract.
[*(Emphasis in the original)*]. Finally, Mr. Fraser concluded that
Aleutian had contractually obligated itself to pay the culinary
workers the wage rates specified in the contracts.
Mr. Fraser resolved the site of the work question in favor of
coverage by virtue of a particular paraphrasing of the pertinent
regulation, 29 C.F.R. 5.2(l):
Paragraph (l)(2) of section 5.2 . . . defines
the site of the work to include other facilities
provided they are dedicated exclusively, or
nearly so, to the performance of the contract
or project and are located in reasonable
proximity to the actual construction
location. An exception to paragraph (l)(2)
was made for permanent, previously established
facilities.
Mr. Fraser concluded that the size of the island itself made
the Shemya camp reasonably proximate to the construction sites (and
opined that the entire island could be considered the site of work
for purposes of the regulation). With regard to the "functional"
(i.e., exclusive dedication) requirement, Mr. Fraser concluded
as follows:
Because of the factual circumstances of this
case (... the limitations on commercial access
to the island . . . the contractual requirement
to establish a camp, and the temporary
nature of the facility), we find that Aleutian
camp meets the functional test having been
established exclusively, or nearly so, for the
purpose of supporting Aleutian's construction
contracts. [4]
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[5]
The next round of pleadings was initiated by Aleutian's June
18, 1991 motion for a determination that the wages actually paid
were conformable to the contract, a motion predicated on the
inability or unwillingness of Wage and Hour to comply with the
Board's Order of April 1, 1991. Before the time allotted to the
Solicitor's Office for response had elapsed, Aleutian received
another letter from Mr. Fraser. That letter addressed the required
wage survey in the following terms: "it is extremely difficult to
obtain actual wage payment information." Without discussion of its
failure to comply with the Order, the Fraser letter went on for
several pages to dispute the information supplied by Aleutian and
concluded that the wage rates contained in the expired collective
bargaining agreement originally discounted by the Board should
apply.
Aleutian's motion, which is pending as of this date, was met
by a reply from the Office of the Solicitor containing the
following curious statement:
By undated Order of the Wage Appeals Board
delivered to counsel for the Acting
Administrator on June 7, 1991, the Acting
Administrator's Motion for an Extension was denied.
However, the Order was silent with regard to
the Acting Administrator's authority to proceed
with the conformance process or to issue
a conformance ruling. In the absence of such
a direct, unequivocal order, the Acting
Administrator is of the opinion he has the legal
authority and responsibility to proceed with
the conformance process.
Nevertheless, as of the date of the second oral argument in
this matter, the required survey had not been performed (or if it
had been performed, the results were not made available). The sole
proffered justification for this situation was the alleged
difficulty of the task.
On appeal from the coverage determination of May 31, 1991,
Aleutian contends that the camp workers were not laborers and
mechanics within the meaning of the Davis-Bacon Act; that they were
not employed on the site of the work; and that the culinary workers
were not covered as a matter of contract, and even if they were,
the Wage Appeals Board is without jurisdiction to consider the
question. The Associated General Contractors of America ("AGC")
supports Aleutian on the first two points and does not address the
third. The Solicitor's Office argues that the Wage and Hour
determination and its conformance proceeding was acceptable. [5]
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[6]
II. DISCUSSION
A. Statutory Coverage: Laborers and Mechanics
Davis-Bacon coverage is limited to "laborers and/or mechanics"
employed directly on the site of a federal or District of Columbia
public building or work jobsite. In addition, those laborers or
mechanics must play a direct role in the prosecution of the
project; otherwise, there would be no practical limit to the
possible scope of the statute.
The Solicitor, while candidly admitting at oral argument that
the camp workers were service providers of the type contemplated by
the Service Contract Act, argues that for purposes of this matter
the culinary and maintenance workers are laborers and/or mechanics
by virtue of the physical (as opposed to mental or managerial)
nature of their duties. Aleutian and the AGC more persuasively
argue that Congress intended the term "laborer and/or mechanic"
should be limited to construction workers as that term is
ordinarily understood; i.e., those engaged in "the work of a trade"
in a construction sense. This position finds support in the
overall legislative history of the Davis-Bacon Act. One passage in
particular demonstrates the distinction between laborers and
mechanics and those engaged in support functions. In discussing
the need for the legislation, the Senate Report demonstrates an
awareness of work camp conditions then prevalent but an implicit
unwillingness to extend statutory coverage to those employed
therein:
This practice [of bringing underpaid workers
into local construction markets] . . . has
resulted in a very unhealthy situation. Local
artisans and mechanics, many of whom are
family men owning their own homes, and whose
standards of living have long been adjusted to
local wage scales, can not hope to compete
with this migratory labor. Not only are local
workmen affected, but qualified contractors
residing and doing business in the section of
the country to which Federal buildings are
allocated find it impossible to compete with
the outside contractors, who base their
estimates for labor upon the low wages they can
pay to unattached, migratory workmen imported
from a distance and for whom the contractors
have in some cases provided housing facilities
and food in flimsy, temporary quarters
adjacent to the project under construction.
S. Rep. 1445, 71st Cong., 3d Sess., 1, 2 (1931); see also H. Rep.
2453, 71st Cong., 3d Sess., 1 (1931). [6]
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[7]
While it could be argued that this passage alone indicates a
Congressional intent to exclude the Aleutian camp workers from the
class protected by the Davis-Bacon Act, it must also be observed
that nowhere in the Act or its legislative history (or, for that
matter, in the legislative records of subsequent amendments or
oversight hearings) is the term "laborers and/or mechanics"
precisely defined. Pending legislative activity on the subject,
the Board must regard the precise meaning of this term as an open
question (see concurring opinion of Member Peters).
However, the regulations do contain definitions which support
the proposition espoused by Aleutian and the AGC insofar as some
direct relationship between the work in question and the
construction project is required. For example, the definition of
"building" or "work" found at 29 C.F.R. 5.2 (i) states that the
terms "generally include construction activity as distinguished
from manufacturing, furnishing of materials, or servicing or
maintenance work". Similarly, the terms "construction,"
"prosecution," "completion," and "repair" defined at 29 C.F.R.
5.2(j) do not contemplate the provision of offsite services to
those actually engaged in construction work.
It can therefore be fairly stated that neither the Act nor the
regulations thereunder cover the camp workers, as their
relationship to the projects under construction is simply too
indirect. The Board specifically declines to rule on the question
of whether the camp workers are laborers or mechanics within the
meaning of the statute; rather, the Board holds that the physical
or manual labor under consideration must have a direct relationship
to the prosecution, completion or repair of the public work or
public building project with which it is associated. Accordingly,
the Board agrees with Aleutian and the AGC that the camp workers
are not covered by the Act.
B. Statutory Coverage: The Site of The Work
The Acting Administrator found, and the Solicitor argues, that
the regulatory definition of the site of work would include the
Shemya camp because it was "established exclusively, or nearly so,
for the purpose of supporting the performance of Aleutian's
construction contracts." This conclusion expands the scope of the
applicable regulation well beyond its own terms and would, if
adopted by the Board, create a potentially dangerous precedent.
Under 29 C.F.R. 5.2(l), the site of work is
(1) . . . limited to the physical place or
places where the construction called for in
the contract will remain when work on it has
been completed and, as discussed in paragraph
(l)(2) [7]
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[8] of this section, other adjacent
or nearby property used by the contractor or
subcontractor in such construction which can
reasonably be said to be included in the
"site".
(2) . . . fabrication plants, mobile factories,
batch plants, borrow pits, job headquarters
tool yards, etc., are part of the "site
of the work" provided they are dedicated
exclusively, or nearly so, [*to performance of
the contract or project*], and are so located in
proximity to the actual construction location
that it would be reasonable to include them.
[*(Emphasis supplied)*].
Thus the regulation requires both geographic proximity and
functional dedication to one particular contract or project before
the ordinary ambit of the site of work is expanded. There is no
doubt, given the relatively short distance between the camp and
the construction sites, that the geographic test is met. However,
it is equally clear that the functional dedication requirement has
not been met.
The Shemya camp serviced and continues to service many workers
on numerous projects. Objectively, it is impossible to say that it
is or ever was dedicated to a particular contract or project. The
use of the singular in the regulation means that an offsite
location servicing a number of projects would not be included
within the site of the work definition.
The Acting Administrator's assertion that the camp is part of
the site of work because it was "established exclusively, or nearly
so, for the purpose of supporting the performance of Aleutian's
construction contracts" raises a more subtle problem than the
attempted expansion of the definition to include multiple project
facilities. The regulation specifically uses the term "dedicated"
rather than "established" in order to allow an objective assessment
of how the facility was used. Were the Board to allow subjective
arguments regarding why a facility was "established," any
contractor attempting to avoid coverage would claim it intended to
supply more than one project. As the Board has been reminded of
this distinction by the Solicitor's Office on numerous occasions,
it concludes that "sauce for the goose is sauce for the gander."
In summary, the Board holds that the Shemya camp was not part
of the site of the work within the meaning of 29 C.F.R. 5.2(l).
C. Contractual Coverage
In light of the foregoing, neither the culinary workers nor
the maintenance workers are covered by the Davis-Bacon Act as a
matter of law. However, the [8]
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[9]
Acting Administrator found the culinary workers were entitled to the
wages contained in the contracts Aleutian signed with the contracting
agency. Aleutian contests this finding, arguing that the Department
of Labor has no authority to administer and enforce the agreement between
the contractor and the Corps of Engineers; furthermore, "no authority
was delegated to the [Wage Appeals] Board to decide questions of
contract interpretation arising under contract provisions other
than the labor standards provisions." (Reply Memorandum of
Petitioners, p. 9).
Were Aleutian's argument correct, the Board would be severely
limited in its ability to act in the place of the Secretary; the
culinary workers could be denied the wages contained in the
contract, and Aleutian might be unjustly enriched, assuming the
Corps of Engineers agreements were priced on the assumption those
wage rates would be paid. However, the Board does have the
authority to uphold the Wage and Hour determination, and at least
one Federal Circuit Court has so held.
In Woodside Village v. Secretary of Labor, 611 F.2d 312 (9th
Cir. 1980), a contractor sued to obtain release of contract
proceeds which had been withheld for violations of the Davis-Bacon
Act. Between the time the contractor submitted his bid and the
time construction began, President Nixon issued a proclamation
suspending the Davis-Bacon Act. Accordingly, the District Court
held that the workers in question were not entitled to prevailing
wages as a matter of law, and therefore reversed a Wage Appeals
Board finding of back wage liability. The Ninth Circuit reversed,
and, in affirming the Board, stated:
The case cannot be resolved simply by deciding
. . . whether the requirements of the Davis-
Bacon wage scale provisions were by operation
of law made a part of plaintiff's contract
documents. True, if the Davis-Bacon Act
applies to a contract, the contractor must pay
wages "not less" than the "minimum wages"
specified in a schedule furnished by the
Secretary of Labor. [Citation omitted]. But
the converse is not necessarily true. Nothing
in the Davis-Bacon Act precludes the parties
from contracting with reference to it, even if
by proper interpretation its requirements may
not have been applicable by force of law to
the project in question . . . .
We agree with the decision of the Wage
Appeals Board based on comprehensive findings
by the administrative law judge that
plaintiff, Woodside Village, a limited partnership,
voluntarily [9]
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[10] and knowingly agreed to
perform the contract in conformity with and
subject to the minimum wage requirements of
the Davis-Bacon Act.
611 F.2d 315-16.
Accordingly, the Board finds that Aleutian knowingly agreed
with the Corps of Engineers to pay culinary workers, when and if
employed, the wages specified in the contract and is contractually
bound to do so. To that limited extent the determination of the
Wage and Hour Division is affirmed.
D. The Conformance
In view of the foregoing findings, the motion of Aleutian to
declare the wages actually paid in conformance with the contract is
dismissed as moot. The Board also dismisses as moot Aleutian's
separate petition (WAB Case No. 91-28) for review of the July 22,
1991 conformance ruling. However, the Board shares Petitioners'
frustration with the duration of the process and the inability or
unwillingness of the Wage and Hour Division to conduct a wage
survey in compliance with the Order of April 1, 1991. The Board
will entertain similar motions in appropriate circumstances in the
future.
III. CONCLUSION
For the foregoing reasons the rulings of the Acting
Administrator with regard to the maintenance workers are reversed
and the ruling with regard to the contractual coverage of the
culinary workers is affirmed.
BY ORDER OF THE BOARD:
Charles E. Shearer, Jr., Chairman
Ruth E. Peters, Member
Patrick J. O'Brien, Member
____________________________
Charles E. Shearer, Jr.
Chairman [10]
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[11] Member Peters, Concurring
I agree with the majority that the camp workers do not meet
the "site of the work" requirement of the Davis-Bacon Act and 29
C.F.R. 5.2(l); in addition, I agree that the culinary workers are
subject to prevailing wage requirements as a matter of contract.
I part company with the majority, however, on their analysis of
whether the camp workers are "laborers" or "mechanics." My views
on this issue are set forth below.
1. "Laborers" or "Mechanics"
The analysis of whether the culinary and maintenance employees
in this case are entitled to be paid at the prevailing wage rates
under the Davis-Bacon Act and overtime compensation under the
CWHSSA begins with an examination of whether those employees are
"laborers" or "mechanics" within the meaning of those statutes.
The Davis-Bacon Act (40 U.S.C. [sec] 276a(a)) provides for
coverage of a contract for "construction, alteration and/or repair"
which "requires or involves the employment of mechanics and/or
laborers," and also provides (Id.) that contractors and
subcontractors shall pay the prevailing wage rates to "all
mechanics and laborers employed directly upon the site of the work
. . . ." Likewise, the CWHSSA -- which is not limited solely
to coverage of construction contracts /FN1/ -- provides for
coverage of certain contracts which "require or involve the
employment of laborers or mechanics" (40 U.S.C. [sec] 329(a)), and
also provides for payment of overtime compensation to "every
laborer or mechanic employed by any contractor or subcontractor in
his performance of work" (40 U.S.C. [sec] 328(a)). [11]
/FN1/ The CWHSSA provides, at 40 U.S.C. [sec] 329(a), that the
statute
shall apply, except as otherwise provided, to any contract
which may require or involve the employment of laborers or
mechanics upon a public work of the United States, of any
territory, or of the District of Columbia, and to any other
contract which may require or involve the employment of
laborers or mechanics if such contract is one (1) to which the
United States or any agency or instrumentality thereof, any
territory, or the District of Columbia is a party, or (2)
which is made for or on behalf of the United States, any
agency or instrumentality thereof, any territory, or the
District of Columbia, or (3) which is a contract for work
financed in whole or in part by loans or grants from, or loans
insured or guaranteed by, the United States or any agency or
instrumentality thereof under any statute of the United States
providing wage standards for such work: Provided, that the
provisions of section 328 of this title, shall not apply to
work where the assistance from the United States or agency or
instrumentality as set forth above is only in that nature of
a loan guarantee, or insurance. [11]
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[12] Neither the Davis-Bacon Act nor the CWHSSA define the term
"laborers or mechanics." In analyzing that term, however, it is
pertinent to note that use of the term "laborers or mechanics" in
the public contract context predates both the Davis-Bacon Act and
the CWHSSA by many decades; the term can be found in the Eight-Hour
Laws which were the predecessors to the CWHSSA. Under the
Eight-Hour Laws, the term "laborers or mechanics" was apparently
construed broadly. See, e.g., 29 Op. Atty. Gen. 481 (1912)
(explaining that "laborers," in the ordinary sense, refers to
persons "doing manual work").
The Department of Labor, at 29 C.F.R. 5.2(m), has provided a
definition of "laborers or mechanics" for both Davis-Bacon Act and
CWHSSA purposes. That regulation specifies that "[t]he term
`laborer' or `mechanic' includes at least those workers whose
duties are manual or physical in nature (including those workers
who use tools or who are performing the work of a trade), as
distinguished from mental or managerial." It seems indisputable
that the duties of the culinary and maintenance workers involved in
this case -- duties that included preparing and serving food, and
cleaning living quarters -- were "manual or physical in nature,"
and thus that those workers are "laborers or mechanics" within the
meaning of the Department's definition of that term. Section
5.2(m), as a validly promulgated regulation of the Department of
Labor, is binding upon the Wage Appeals Board, which is without
authority to contravene the terms of the regulation. See, e.g.,
California Human Development Corp. v. Brock, 762 F.2d 1044 (D.C.
Cir. 1985) (Department of Labor's actions must conform to its own
regulations).
Petitioners argue that the culinary and maintenance workers do
not meet the definition in Section 5.2(m) because they do not use
tools or perform the work of a trade, as those concepts are
generally understood in the construction industry. The obvious
answer to that argument is that the parenthetical reference in
Section 5.2(m) to workers who use tools or perform the work of a
trade simply serves to establish that such workers are included
within the definition of "laborers or mechanics," but does not
limit the scope of that definition to such workers.
Petitioners also argue essentially that the term "laborers or
mechanics" is limited to construction workers and does not include
service workers. However, the language of Section 5.2(m) which, as
noted above, defines "laborers or mechanics" for both Davis-Bacon
Act and CWHSSA purposes, does not draw the distinction offered by
Petitioners. Indeed, as noted by the Acting Administrator in his
May 31, 1991 decision in this matter, the Department has applied
the CWHSSA to culinary workers, camp workers and janitorial workers
employed on thousands of service contracts subject to the Service
Contract Act ("SCA"). See 29 C.F.R. 4.181(b) (regarding CWHSSA
coverage of SCA service employees who are laborers or mechanics
within the meaning of the [12]
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[13]
CWHSSA). Thus, to accept Petitioners' argument that the culinary workers
and maintenance workers involved in this case are not "laborers or mechanics"
would not only contravene the Department's regulatory definition in
Section 5.2(m), but would also hold the potential to wreak havoc
with CWHSSA coverage of service workers employed under SCA
contracts.
2. "Required or Involved" in the Contract
The inquiry into whether the culinary and maintenance workers
are covered by the Davis-Bacon Act does not end with the
determination that the workers are "laborers" or "mechanics" within
the meaning of 29 C.F.R. 5.2(m). As stated above, the coverage of
the Act extends to a contract which "requires or involves the
employment of mechanics and/or laborers," and provides that
prevailing wage rates shall be paid to "all mechanics and laborers
employed directly upon the site of the work. . . ." (Emphasis
supplied). As noted above, the Board has determined that the
culinary and maintenance workers are not employed upon the "site of
the work" within the meaning of the Davis-Bacon Act and the
Department's regulations. Set forth below is an analysis of
whether the work of the culinary and maintenance employees is
"required or involved" in Aleutian's three Davis-Bacon contracts
-- or, as the test is phrased by the Acting Administrator --
whether "the work performed was related to the prosecution of the
contract and necessary for its completion."
In this case, it is fairly simple to arrive at the answer to
the question whether the work is "required or involved" in the
contract. One of Aleutian's three contracts expressly required
Aleutian to house and feed its employees, and the other two
contracts specified that the military facilities on Shemya Island
were not available for the employees' food and lodging. In these
unique circumstances, it would be difficult to conclude that the
work of the culinary and maintenance employees is not "required or
involved" in the performance of Aleutian's contracts.
In cases where a Davis-Bacon contract does not specifically
provide for the feeding and housing of the construction workers
employed under the contract, the question whether the work of camp
employees is required by or involved in the prosecution and
completion of the construction contract becomes much more complex.
As noted by counsel for the Acting Administrator (Statement, at p.
16), since 1949 the Department of Labor has had a consistent policy
that camp workers at remote construction sites in Alaska come
within the coverage of the Davis-Bacon Act. The 1949 Secretary of
Labor opinion letter upon which that policy is based reasoned that
in the unique circumstances of those remote locations, the
operation of housing and commissary facilities was "work
necessarily involved in the performance of the construction
contract." The [13]
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[14] majority does not discuss this policy or
explain how its decision affects that policy. Furthermore, for
purposes of reaching a final disposition in this matter, I do not
think it is necessary for the Board to rule on the validity of this
long-standing Department policy. I would strongly suggest,
however, that the Acting Administrator must consider whether that
policy has now run its course, or at the very least deserves some
limitation.
The remote location described in the 1949 opinion letter was
situated along the right of way of the Alaska Railroad. The remote
location (Shemya Island) involved in this case, on the other hand,
is an established federal enclave. Thus, one point to consider in
analyzing the continued application of the policy relied upon
by the Acting Administrator is the extent to which the nature of
"remote sites" where Davis-Bacon work is performed has changed.
Furthermore, to the extent that such work is performed at
established federal installations (like Shemya) with an ongoing
construction program, it is likely that even if the activities of
camp workers were considered necessary to the prosecution of
construction contracts, such work would nevertheless have the same
difficulties meeting the "site of work" requirement as does the
work of the camp employees involved in the instant case.
In addition, to the extent that this policy is based on the
practice of covering camp workers in construction industry
collective bargaining agreements, it is pertinent to consider
whether the expiration of the collective bargaining agreement
involved in this case signals a change in that practice.
Finally, I note Petitioners' emphasis on the fact that 29
C.F.R. 5.2(i) defines the terms "building" or "work" to "generally
include construction activity as distinguished from manufacturing,
furnishing of materials, or servicing and maintenance work." For
the reasons discussed at pp. 11-13, above, I completely disagree
with Petitioners' position that Section 5.2(i) somehow modifies the
definition of "laborers" or "mechanics" in Section 5.2(m). I do
think, however, that Section 5.2(i) raises questions of the
divisibility of the actual construction work conducted under a
Davis-Bacon contract from construction camp service work performed
in support of that contract, and the circumstances under which SCA
coverage may or may not be available for the work of providing food
and lodging for construction workers on Davis-Bacon projects. A
full analysis of the interrelationship between the Davis-Bacon Act
and the SCA is beyond the scope of this decision; I note, however,
that at oral argument counsel for the Acting Administrator
explained in general terms that the practice is, for example, to
consider maintenance work at the construction site during
performance of the Davis-Bacon contract to be within the coverage
of the Davis-Bacon Act, whereas maintenance work performed after
completion of the contract would not be considered to be within
Davis-Bacon coverage. I have no quarrel with that distinction;
furthermore, I do not read the majority decision as [14]
~15
[15]
precluding coverage of workers who maintain the construction site,
construction materials or construction equipment. The example
offered by counsel, however, does not address squarely the coverage
of camp food and lodging service work during the performance of the
Davis-Bacon contract but away from the actual construction
site. Counsel also discussed the possibility in circumstances such
as those presented in the Shemya situation of a contracting
agency's award of a separate SCA contract for feeding and housing
civilian personnel. To the extent that contracting agencies and
the Department are concerned about providing labor standards
protection for camp workers who perform services in support of
federal construction contracts, and given the necessity of meeting
the site of work requirement for purposes of Davis-Bacon coverage,
that possibility may warrant further exploration. [15]
