Chief Yeager testified that he relieved officers on the site and that (when he did so) he directed traffic using the stop stick furnished by Superior Paving. T. 374-375.

   At the outset of work on the project, the officers wore their regular police uniforms. In hot weather, however, they wore shorts and tee shirts imprinted with the word "Police" on them. D&O 2; T. 26, 367. Permission to wear the hot-weather outfits was granted by Chief Yeager. T. 367. Superior Paving did not permit its own construction crew employees to wear shorts. T. 301. Initially, the officers wore safety vests supplied by Superior Paving; later, the Village of Carrollton supplied the vests. D&O 2; T. 72, 101, 122, 368.

   With one exception (the auxiliary police officer, Eric Stanbro), the officers had powers of arrest; they wore badges and carried their duty weapons and handcuffs while on the project. D&O 2; T. 72, 143, 367-368. One of the officers issued three traffic citations and arrested a motorist who failed to follow his directions. T. 376-377. Chief Yeager considered himself to be the off-duty police officers' supervisor and expected them to leave and report for official police duties in the event of an emergency. T. 369-370.

   The officers did not apply to Superior Paving for employment, attend daily meetings of the contractor's construction crew employees, or receive copies of Superior Paving's company policies. D&O 2; T. 49, 89, 115, 143.

   A Superior Paving witness testified that the contractor elected to use the off-duty officers (rather than its own crew of laborers) for the traffic control work, because "experience has shown that these patrolmen . . . do a better job controlling the traffic and the traffic responds to them where they don't respond to our laborers." D&O 2; T. 394. This witness also testified that the $10.00 hourly rate established by Chief Yeager was not a factor in Superior Paving's having hired the off-duty police officers; Superior Paving had paid higher rates for such off-duty police officer work on past projects. T. 414-415.

   Superior Paving replaced the off-duty officers with members of its regular construction crew when the officers were on break or at lunch. D&O 2, 31, 40, 77, 104, 126. Members of Superior Paving's regular construction crew also directed traffic when more than one area was being worked on, or when traffic otherwise would have come in from side streets. T. 29, 77, 126-127. The crew members wore ordinary work clothes, and reflective vests and directed traffic using the stop/slow sign furnished by Superior Paving. T. 40, 62, 76. When directing traffic, the crew members had the same duties as the officers. T. 29, 77, 104.

The ALJ correctly ruled that the Village of Carrollton off-duty police officers were "laborers" within the meaning of the Act.

   Further, Superior Paving's contract obligated it to comply with the CWHSSA's overtime labor standards provisions, which require that a "laborer or mechanic" employed by a contractor in performance of a covered contract receive one and one–half times his basic rate of pay for all hours worked in excess of forty in a week. JX-1 at C-2-C, ¶7. See 40 U.S.C.A. § 328(a) (West 2001).

   The DBA, CWHSSA, and the FAHA (and their respective legislative histories) do not specifically define the terms "laborer" or "mechanic." The regulations issued by the Department of Labor to implement the DBA and CWHSSA define these terms in the following manner:

The 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 . . .. The term does not apply to workers whose duties are primarily administrative, executive, or clerical, rather than manual.

29 C.F.R. § 5.2(m) (2001) (emphasis in original). The Department's regulations do not further define the term "laborer" or address specific classifications of construction employees.

   However, the Wage and Hour Division, the departmental component with expertise in administering the DBA and its related statutes, has further interpreted the term "laborer" in two documents. In All Agency Memorandum No. 141 (Aug. 19, 1985) (AAM 141) attaching and incorporating an August 16, 1985 opinion letter to the Laborer's International Union of North America, the Deputy Administrator of the Wage and

AAM 141 at 1; JX-2 at C-4-B. AAM 141 notes that, in performing the duties of the classification, "a flagger is engaged in the physical activities of lifting and carrying various objects as well as directing the activities of others through body movements, all of which are manual in nature." Id. The AAM 141 opinion letter also states that the work of flaggers is "integrally related to other construction work on the job, since it would be impossible to satisfactorily complete such projects without their services." JX-2 at C-4-C.

   Additional interpretative material is found in § 15e09(a) of the Wage and Hour Division's Field Operations Handbook (FOH). The FOH establishes procedures and investigative guidance for Wage and Hour Division employees and is available to the public for information concerning the requirements for compliance with various labor laws administered and enforced by the Wage and Hour Division, including the DBA and related statutes. FOH § 15e09(a) references All Agency Memorandum No. 141 and notes that the duties of flaggers are of a physical and manual nature and that "flaggers typically work on or around heavy or highway construction projects as part of the construction crew; and their work is integrally related and a necessary incident to the other construction activities at the site."

   The Board concludes that it is proper to grant deference to the Wage and Hour Division's policy guidance in AAM No. 141 and FOH § 15e09(a), since the Wage and Hour Administrator "is the primary federal authority entrusted with determining the [statute's] scope." Reich v. Miss Paula's Day Care Center, Inc., 37 F.3d 1191, 1194 (6th Cir. 1994). In that case, the court noted that the Wage and Hour Division's opinions "‘while not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which the courts and

litigants may properly resort for guidance.'" Id., quoting Skidmore v. Swift, 323 U.S. 134, 140 (1944). The Wage Appeals Board (WAB) – one of this Board's predecessor agencies – noted that 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 No. 89-14, slip op. at 7 (May 10, 1991), citing Udall v. Tallman, 380 U.S. 1, 16-17 (1965).

   We therefore are deferring to the interpretation made by the Wage and Hour Administrator that "flaggers" are "laborers" under the Act, and will apply the interpretative guidance in AAM 141 and FOH § 15e09(a) concerning "flaggers" in analyzing the facts of this case. When we do so, the work tasks described by officers Eric Stanbro, Robert Ellington, Lisa Ellington and Ronnie Wilson fall within the terms of the regulatory definition of "laborer" and the interpretative Agency guidance contained in AAM 141 and FOH § 15e09(a).

   The duties these officers performed were manual or physical in nature rather than mental or managerial. They stood at or near the highway construction project site and manually directed traffic by use of a stop sign. D&O 2; T. 27, 73, 122, 302. They spent the majority of their working time engaged in this activity. Additionally, although not required to do so, they set up or moved traffic barrels or cones. D&O 2; T. 25, 75, 114-5.

   The facts that they were not otherwise members of the construction crew and that they were not required to move the traffic barrels or cones, do not change the nature of the activities in which they engaged, which were manual in nature and which were required to complete the construction project.

   We therefore reject Superior Paving's arguments that these officers cannot be considered laborers because they were not members of the construction crew and were not required to move the barrels or cones. Similarly, we reject Superior Paving's contention that the interpretative guidance is not applicable to the case before us because it does not specifically address the situation of off-duty police officers engaged in traffic control. The guidance is pertinent to the situation of any person engaged in the activities described, and therefore is pertinent to this case.

   Superior Paving also argues both that the officers were qualitatively different (because they were law enforcement officers) from construction crew members engaged in the same activities and that they were engaged in a fundamentally different activity, i.e., creating a law enforcement presence. The specific facts of this case lead us to find that these officers engaged in virtually the same activities as construction crew members, and their attire and powers did not differentiate them in any fundamental way from the construction crew members.

   We note that one of the other officers made an arrest and issued some traffic citations. T. 376-7. Although we find that the time spent in the activities of making the arrest and issuing citations is police enforcement, and not covered under the Act, that was a lone occurrence, without known duration. We therefore conclude that that officer, as well as the other non-testifying officers, was a "flagger" throughout his service on the project.

to the current minimum wage provisions." Ex. PC-7. The Federal Highway Administration manual is not a document issued by the agency charged with interpreting the Act, and based on the numbering of the purported United States Department of Labor ruling which appears in the cited manual section, it appears that the ruling would have been issued in 1975, well before the 1985 change in the Department's interpretation of coverage of "flaggers" under the Act. Since it does not qualify as a current interpretation of the Act by an agency to which deference is due, and is merely a summary statement without any reasoning to support it, we find it unpersuasive.

   Superior Paving's argument that Congress did not intend to include workers such as the off-duty officers in this case within the ambit of the DBA's covered "laborers and mechanics" also is unpersuasive. Superior Paving offers no language from the Act or its legislative history to support its proposition, only dicta from a WAB case.

   Similarly, Superior Paving's citation to a 1986 Ohio Department of Industrial Relations determination that police officers directing traffic around a project site are not laborers subject to the State's "mini Davis-Bacon Act" is not convincing. No reasoning was set forth in that determination other than the Ohio Attorney General's Office indication to the Ohio Department that " the off duty policeman does not perform work on the project as a laborer, workmen [sic] or mechanic and, therefore, is not required to be paid the prevailing wage rate." Likewise, the 1982 letter to Governor Rhodes from a Legal Advisor at the Ohio Department of Industrial Relations which references Ohio jurisprudence, an IRS determination letter, and conversations with unnamed "Federal authorities" who allegedly at that time considered an off-duty officer not to be a laborer or mechanic under the Act, but rather an independent contractor, is of little utility. The Ohio agency's determination and the 1982 letter to Governor Rhodes relate to state law and do not consider the interpretative guidance of the Wage and Hour Division, which we have determined warrants deference in this case. Moreover, the State agency determination and the advice letter were rendered on the basis that the off-duty officer was an independent contractor, a question which we consider and dismiss in Section II of our decision, infra.

   Petitioner also cites various state law decisions which do not interpret the DBA (or any other federal labor statute) or consider the Wage and Hour Division's interpretations of the Act. Those cases apply the requirements of statutes unrelated to the Act to police officers engaged in their usual occupational activities. Therefore, we find these state law cases holding that the work of police (and firefighters) was exempt from wage standards statutes because such work was nonmanual or was the work of executives, administrative employees, or professionals irrelevant to the present proceedings. Petitioner contends that the "[R]egulations for the Davis-Bacon Act explicitly provide that individuals who are exempt from the Minimum Wage Act because they are executives, administrators or professionals are not laborers or mechanics. 29 C.F.R. § 5.5(m) [sic]." To qualify under the exemption in 29 C.F.R. § 5.2(m), the primary duty of an individual must be work meeting the regulatory requirements in Part 541 defining "employee employed in a bona fide executive, administrative, or professional capacity." Under the facts of this case, the primary duties of the officers did not involve performance of work meeting those requirements.

   Accordingly, with the exception of Officer Dale R. Williams, we conclude that the ALJ appropriately determined that the Village of Carrollton's off-duty police officers were performing the duties of flaggers on the SR 43 road project and therefore were laborers within the meaning of the Act, FAHA, CWHSSA, and the Department of Labor's implementing regulation at 29 C.F.R. § 5.2(m) (2001).

II. The ALJ properly concluded that Superior Paving – as prime contractor on the SR 43 widening project – is liable for the payment of DBA prevailing and CWHSSA overtime wages to the affected off-duty police officers who were employed or working as laborers within the meaning of the Act.

   Having reached the conclusion that certain of the off-duty police officers working on the SR 43 project fit within the definition of "flaggers," and were laborers or mechanics subject to the DBA and CWHSSA labor standards provisions, we turn to the remaining issues raised by the Petition for Review. Petitioner argues that the ALJ erred in determining that the off-duty officers were Superior Paving's employees and that Petitioner was liable for the payment of the applicable DBA prevailing hourly and fringe benefit rates and the CWHSSA overtime rates.

   As noted previously, the contract contained various provisions required under the DBA, the CWHSSA and their implementing regulations. More specifically, it stated:

All mechanics and laborers employed or working upon the site of work will be paid unconditionally . . . the full amounts of wages and bona fide fringe benefits . . . due at time of payment. The payment shall be computed at wages not less than those in the wage determination of the Secretary of Labor (hereinafter "the wage determination") which is attached hereto and made a part hereof, regardless of any contractual relationship which may be alleged to exist between the contractor or its subcontractors and such laborers and mechanics.

JX-1 at C-2B.

   This language is a stipulation required by 29 C.F.R. § 5.5, which in turn implements that portion of the Act which bars any alleged contractual relationship as a defense against the requirement of paying prevailing wages. 40 U.S.C.A. § 276a(a) (West 1994). The language relating to payment "regardless of any contractual relationship alleged" was not a part of the original 1931 version of the Act, but was added by amendment in 1935 to ensure that all workers performing the duties of laborers and mechanics on covered projects received the prevailing wages established for their classification of employment. In short, this language was enacted to prevent contractors from circumventing the DBA's requirements by resort to legal technicalities or traditional notions of employer/employee relationships. S. Rep. No. 1155, 74th Cong., 1st Sess., p. 3; H. Rep. No. 1756, 74th Cong., 1st Sess., p. 3.

   Thus, as the WAB explained in Lance Love, Inc., WAB No. 88-32, slip op. at 2 (Mar. 28, 1991):

Section 1(a) of the Act [40 U.S.C.A. §276a(a)] applies a functional rather than a formalistic test to determine coverage: if someone works on a project covered by the Act and performs tasks contemplated by the Act, that person is covered by the Act, regardless of any label or lack thereof.

As noted by the WAB in further discussing the Act's "contractual relationship" clause:

If a person works on a job site covered by the Davis-Bacon Act, that person is an ‘employee' within the meaning of the Act regardless of the common law relationship between the worker and the contractor. Congress clearly intended covering such workers regardless of the attempts of the contractor to distance itself from Davis-Bacon obligations.

N.B.A. Enterprises, Ltd., WAB No. 88-16, slip op. at 2 (Feb. 22, 1991).

   Since the officers working as laborers were working on the highway construction site, they fit within the terms of the contractual language and case law requiring payment of at least the wage determination amount to mechanics or laborers employed or working upon the site of work.

   For the foregoing reasons, the Administrative Law Judge's Decision and Order dated February 19, 1999, is AFFIRMED in part and modified in part in accordance with the instructions herein.

   SO ORDERED.

      JUDITH S. BOGGS
      Administrative Appeals Judge

      WAYNE C. BEYER
      Administrative Appeals Judge

      OLIVER M. TRANSUE
      Administrative Appeals Judge