U.S. DEPARTMENT OF LABOR
OFFICE OF THE SOLICITOR
WASHINGTON 25
MAR 16 1962
MEMORANDEM # 36
TO: AGENCIES ADMINISTERING STATUTES REFERRED TO IN 29
CFR, SUBTITLE A, PART 5,
FROM: Peter F. Martin
Acting Assistant Solicitor
SUBJECT: Opinions on application of the Davis-Bacon and related
Acts.
Enclosed with previous covering memoranda, copies of
opinions on the application of the Davis-Bacon and related Acts
were furnished you for information and guidance in your enforce-
ment programs under those Acts.
We are now enclosing a copy of a recent opinion on
this same general subject, which we are sure will be of further
interest and assistance to you.
Enclosure





































DB-22 P. 10 a
108(m)
U.S. DEPARTMENT OF LABOR
OFFICE OF THE SOLICITOR
WASHINGTON 25
March 12, 1962
Mr. E. Irving Manger
Assistant to the General Counsel
Labor Relations
Office of the Chief of Engineers
Department of the Army
Washington 25, D. C.
Re: Eugene Luhr and Company, Prime Contractor
Conrad Weiters Truck Service
Contract No. DA-23-065-CIVENG-61-809
Saddle Dam No. 2
Carlyle Reservoir, Clinton County,
Illinois
E-62-421 and 422
Dear Mr. Manger:
This is in response to the recent inquiry re-
ceived from your Office, regarding the applicability of
the Davis-Bacon Act to truck drivers, employed by the
Conrad Weiters Truck Service, who are engaged in the
hauling of quarried stone to be used in the construc-
tion of Saddle Dam No. 2, Carlyle Reservoir, Kaskaskia
Rivers Clinton County, Illinois. You indicate that the
prime contractor has established two separate arrangements
for the procurement of stone from the East St. Louis Quarry,
which is located about 50 miles from the construction site.
These arrangements are restated below
Plan A . The prime contractor purchases
the stone direct from the East St. Louis
Quarry at a price per ton, f.o.b. the quarry.
Said prime contractor has entered into an in-
formal arrangement with the Conrad Weiters
Truck Service, Breeze, Illinois, for delivery
of the stone at so much per ton. The Conrad
Weiters Truck Service regularly hauls stone
from this quarry to various other sites design-
nated by the stone company in the regular
















Mr. E. Irving Manger    Page 2
course of the trucking firm's business.
The truck service considers itself to be
a commercial hauler. Under this arrange-
ment with the prime contractor, the truck
service hauls the stone from the East St.
Louis Quarry to a stock pile site located
immediately adjacent to the construction
right-of-way limits provided by the Govern-
ment for construction of this project. This
stock pile site was obtained by arrangement
between the prime contractor and the present
owner of this site. After deposit of this.
material at this stock pile site, the
material in loaded onto equipment of the prime
contractor and brought to the dam site area
where it is incorporated into the work. The
operators and truck drivers moving the material
from this stock pile and incorporating it into
the work are carried on the prime contractor's
payroll and are being paid in accordance with
the contract labor standards requirements.
Plan B - The prime contractor has entered
into an informal arrangement with the Conrad
Weiters Truck Service whereby the prime
pays so much per ton to the said truck ser-
vice for the stone delivered on and to the
construction site. The truck service then
purchases the stone from the same quarry and
makes the delivery. The stone is dumped by
the truck service on the construction site at
various stock piles opposite the station where.
it is to be used and is incorporated into the
work by regular employees of the prime contrac-
tor. The trucking service operators do not
leave their trucks.
The solution to the questions presented depends
upon the application of the term subcontractor, as distin-
guished from materialman or submaterialman, to the active-
ties of the trucking firm. Neither the Davis-Bacon Act nor

















Mr. E. Irving Manger           Page 3
Regulations, Part 5, specifically define the terms subcon-
tractor and materialman, as such. However, Section 5.2(f)
of Regulations, Part 5, does set forth that: "... The manu-
facture or furnishing of materials articles, supplies or
equipment ... is not a building' or Work* ... Within the
meaning of the Davis-Bacon and related Acts or of the Regu-
lations] ... unless conducted in connection with and at the
site of such a building or work ... or under the Housing Act
of 1949 in the construction or development of the project."
Accordingly, this Department has traditionally considered
the manufacture and delivery of supply items to the work
sites when accomplished by bona fide materialmen serving the
public in general, as noncovered activities.
Under Plans A and B, above, stone to purchased
from the East St. Louis Quarry, We assume that this is a
preexisting facility serving the public in general and not
a quarry operation set up to meet the requirements of any
particular contract. In this instance, the stone producer
operating the quarry would be a materialman and its activi-
ties would not be subject to the Davis-Bacon Act. We assume,
moreover, that the subject trucking firm is a separate legal
entity with independent substantia1 investment in facilities
and equipment, and an independent business organization and
operation, exercising a requisite degree of independent
initiatives judgment and foresight required for the success
of an independent operation, with like opportunities for
profit or lose, and including that nature and degree of con-
trol utilized by a principal, Under these circumstances,
we have held that where a construction contractor purchases
materials is which are subsequently delivered to the site of
construction by an independent tracking fire, acting for and
on behalf of the producer, such deliveries are incident to
the sale and purchase of these materials, and the drivers
involved are not covered by the Davis-Bacon and related Acts.
Typical of this situation is an agreement for the sale and
purchase of materials, f.o.b. the construction site.
We see no difference regarding the applicability
of the aforementioned laws where, as in this case, the same
parties involved in the transaction modify an agreement to
provide for f.o.b. "the quarry". It would be anomalous to
















Mr. E. Irving Manger   Page 4
say that coverage depends upon the status of title to goods
as determined by the law of sales, or upon the rights and
liabilities derived therefrom. This would be to disregard
the practical aspect of the independent trucking firm's
normal business function. Whether or not an agreement for
the sale and purchase of materials provides for f.o.b. point
of origin or for f.o.b. destination, the question of delivery
by an independent hauler is concomitant with the sale and
purchase agreement itself, and the drivers who are engaged
in this task, and who perform no additional function in con-
nection therewith, do so independently of covered construction
activities. In these circumstances, it cannot be said that
the Conrad Weiters Truck Service is a subcontractor who has
undertaken to perform a specific portion of the work called
for by the prime contract. Accordingly, it in our conclusion
that its drivers who deliver stone to the construction site
pursuant to "Plan A", above, are not covered by the Davis-
Bacon Act.
Considering the similar objectives of both Plans
cited above, and the fact that these Plans have been used
interchangeably under the subject contract, it is our fur-
ther conclusion that in substance, there is no real distinc-
tion and that consequently the drivers of the independent
trucker who make deliveries to the construction site in
accordance with Plan B, would also not be subject to the
requirements of the Davis-Bacon Act.
This opinion is not intended to relieve construc-
tion contractors or their subcontractors from the oblige-
tions imposed by the Davis-Bacon Act and related statutes
where their own employees are themselves engaged in the
transporting of materials and supplies, including quarried
stone such as here in question, to or from the building or
work within the meaning of section 5.2(g) of Regulations,
Part 5.
Yours sincerely,
Charles Donahue
Solicitor of Labor



















DB-21 . P. 111a (3)
U.S. DEPARTMENT OF LABOR
OFFICE OF THE SOLICETOR
Washington 25, D. C.
March 2, 1962
Mr. Carl V. Ramey, Director
Compliance Division
Housing and Home Finance Agency
1626 K Street, N. W.
Washington 25, D. c.
Attention: Mr. Robert E. Dwyer
Room 203
Re: Redevelopment of North East
Washington, D. C.
E-62-595
Dear Mr. Ramey:
This is with reference to your informal request
for advice as to coverage by the Davis-Bacon and related
Acts of certain aspects of demolition work in connection
with the above-identified project.
You advise that the contractor on the above-
identified project, is paying trash burners and house
strippers at the rate of $1.15 per hour, and is paying
brick cleaners at the rate of $6.00 per thousand brick
cleaned regardless of the time required for cleaning.
The contract carries a minimum rate of $2.60 for demo-
lition laborers, with no specific rate for trash burners,
house strippers or brick cleaners. To avoid showing em-
ployees at rates less than $2.60, the names of persons
being paid at the rate of $1.15 or at the brick cleaner's
rate of $6.00 per thousand were omitted from the contrac-
tor's submitted payrolls.
The contract requires the contractor to demolish
the structures and clear the site. The house stripper,
who disconnects and removes radiators, sinks, bowls, bath






















Mr. Carl V. Ramey    Page 2
tubs, refrigerators, water heaters, and electrical fixtures,
and loads such material in trucks, is performing an integral
part of the work required by the contract, and is entitled
to not less than the demolition laborer's rate of $2.60.
The trash burner, who is assisting in clearing the
site, is also performing an integral part of the work required
by the contract, and likewise is entitled to not less than
the demolition laborer's rate of $2.60.
The contractor's obligation, however, to demolish
the structures and clear the site does not include the duty
to clean the brick for resale.
The cleaning of bricks differs from other activities
relating to demolition in that it is an activity apart from,
and is performed in addition to, demolition and cleaning the
site. The men who do the work are normally not demolition
laborers but a separate group who usually confine their work
activities to this specific cleaning operation.. Because the
price of used brick must be sufficiently under the price of
new brick to make the purchase of used brick attractive,
wreckers keep the price of used brick competitive by having
the work done on a piece work basis. This stabilizes their
labor costs, and eliminates the need for time keeping and
the keeping of cost control records. The brick cleaning is
in the nature of a side venture not required by the contract,
and not ordinarily performed by construction-type workers.
Under the circumstances, it is our conclusion that brick
cleaning is not a covered activity and hence persons perform-
ing such work would not be entitled to the contract minimum
rates predetermined pursuant to the Davis-Bacon and related
Acts. The demolition contractor should be advised, however,
that the brick cleaning might be subject to the provisions
of the Fair Labor Standards Act.
If you have further questions on this matter, do
not hesitate to contact us.
Yours sincerely,
Charles Donahue
Solicitor of Labor