we affirm the Administrator's determination not to seek back wages on Wicke's behalf.
Conclusion
The Administrator properly determined that the truck driving work Wicke performed for Larsen transporting materials to and from borrow pits located three to five miles from the various stream crossing rehabilitation project sites was not covered by the DBA. Therefore, we AFFIRM the Administrator's June 5, 2006 final determination.
SO ORDERED.
WAYNE C. BEYER
Administrative Appeals Judge
M. CYNTHIA DOUGLASS
Chief Administrative Appeals Judge
[ENDNOTES]
1 40 U.S.C.A. §§ 3141-3148 (West Supp. 2003). The regulations that implement the Act are found at 29 C.F.R. Parts 1 and 5 (2008).
2 40 U.S.C.A. § 3142(a).
3 Id.
4 29 C.F.R. Part 1.
5 40 U.S.C.A. § 3142(b); 29 C.F.R. § 1.3.
6 See 29 C.F.R. § 1.2(a)(1).
7 Tab T.
8 Tab K.
9 Tabs K, S.
10 Id.
11 Tabs A, K.
12 Tab M.
13 Tabs M, Q.
14 Tabs O.
15 Tab L.
16 Tab K.
17 Id.
18 See Wicke's May 12, 2003 Petition for Review.
19 Tab E.
20 See 29 C.F.R. § 5.2 (2007); 65 Fed. Reg. 80,268-80,277 (Dec. 20, 2000).
21 Tab E.
22 Tab D.
23 Id.
24 Tab A.
25 See Ball, Ball & Brosamer v. Reich, 24 F.3d 1447, 1449, 1452 (D.C. Cir. 1994)(DBA only covers borrow pits located in actual or virtual adjacency to the construction site and borrow pit located "about two miles" from the construction site is not covered); L.P. Cavett Co. v. U.S. Dep't of Labor, 101 F.3d 1111, 1115 (6th Cir. 1996)(while a facility in virtual adjacency to a public work site might be considered part of that site, a facility located two or three miles away from the site would not).
26 Tab A.
27 29 C.F.R. § 7.9(a) ("Any party or aggrieved person shall have a right to file a petition for review with the Board (original and four copies), within a reasonable time from any final decision in any agency action under part 1, 3, or 5 of this subtitle.").
28 29 C.F.R. § 7.1(b)(2008). See Secretary's Order 1-2002, 67 Fed. Reg. 64,272 (Oct. 17, 2002).
29 29 C.F.R. § 7.1(e).
30 Miami Elevator Co. & Mid-American Elevator Co., Inc., ARB Nos. 98-086, 97-145, slip op. at 16 (Apr. 25, 2000). See also Millwright Local 1755, ARB No. 98-015, slip op. at 7 (May 11, 2000); Dep't of the Army, ARB Nos. 98-120, 98-121, 98-122, slip op. at 16 (Dec. 22, 1999) (under the parallel prevailing wage statute applicable to federal service procurements, the Service Contract Act, 41 U.S.C.A. § 351 et seq. (West 1987)), citing ITT Fed. Servs. Corp. (II), ARB No. 95-042A (July 25, 1996) and Service Employees Int'l Union (I), BSCA No. 92-01 (Aug. 28, 1992).
31 Titan IV Mobile Serv. Tower, WAB No. 89-14, slip op. at 7 (May 10, 1991), citing Udall v. Tallman, 380 U.S. 1, 16-17 (1965).
32 40 U.S.C.A. § 3142(a), (c)(1).
33 29 C.F.R. § 5.2(l) (2000) provided:
(l) The term site of the work is defined as follows:
(1) The site of the work is 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) 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) Except as provided in paragraph (l)(3) of this section, 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.
34 The Board has also held that 29 C.F.R. § 5.2(l)(2) (2000) applies to mineral borrow pits. See Ball, Ball & Brosamer, Inc., slip op. at 10 (applying site of the work definition to a "sand and gravel pit" that provided sand, gravel and other aggregates).
35 Bechtel I, slip op. at 7.
36 Id.
37 See Bechtel Constructors Corp., ARB No. 97-149, slip op. at 5-6 (ARB Mar. 25, 1998)(Bechtel II).
38 See 29 C.F.R. § 5.2(l) (2008). This regulation became effective on January 19, 2001. See 65 Fed. Reg. 80,268 (Dec. 20, 2000). As amended, "site of the work" is defined as follows:
(1) The site of the work is the physical place or places where the building or work called for in the contract will remain; and any other site where a significant portion of the building or work is constructed, provided that such site is established specifically for the performance of the contract or project;
(2) Except as provided in paragraph (l)(3) of this section, job headquarters, tool yards, batch plants, borrow pits, 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 provided they are adjacent or virtually adjacent to the site of the work as defined in paragraph (l)(1) of this section;
(3) Not included in the site of the work are permanent home offices, branch plant establishments, fabrication plants, tool yards, etc., of a contractor or subcontractor whose location and continuance in operation are determined wholly without regard to a particular Federal or federally assisted contract or project. In addition, fabrication plants, batch plants, borrow pits, job headquarters, tool yards, etc., of a commercial or material supplier, which are established by a supplier of materials for the project before opening of bids and not on the site of the work as stated in paragraph (l)(1) of this section, are not included in the site of the work. Such permanent, previously established facilities are not part of the site of the work, even where the operations for a period of time may be dedicated exclusively, or nearly so, to the performance of a contract.
29 C.F.R. § 5.2(l) (2008).
39 65 Fed. Reg. at 80,272.
40 328 U.S. 680 (1946).
41 See Thomas & Sons Bldg. Contractors, Inc., ARB No. 00-050, ALJ No. 1996-DBA-037, slip op. at 4 (ARB Aug. 27, 2001), order denying recon., slip op. at 1-2 (ARB Dec. 6, 2001); Tratoros Constr. Corp., WAB No. 92-03, slip op. at 6 (Apr. 28, 1993).
42 See, e.g., 1 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 63 (2d ed. 1994) ("[The] broadest and most accepted idea [is] . . . that the person who seeks court action should justify the request, which means that the plaintiffs bear the burdens on the elements in their claims.").
43 Mt. Clemens Pottery, 328 U.S. at 687-688; see also Thomas & Sons, supra.
44 See Petition for Review at 9-10; Wicke Brief at 9.
45 See Wicke Brief at 12-23.
46 See Wicke Brief at 24.
47 See Administrator's Brief at 7-16.
48 See Administrator's Brief at 16-19; see also 29 C.F.R. § 7.1(b).
49 See Wicke Brief at 25-30.
50 See Tabs A, C, T.
51 The borrow pits included East Haystack Pit, Peeks Pit, Wischer Pit, Highway 8 Pit, and Camo One Pit, which were government owned, and the Gieter Pit, which was privately owned. See Tabs A, C.
52 Tab E at 1.
53 See Tab A.
54 See Tab T.
55 See Tab A.
56 See Bechtel I, slip op. at 7.
57 See Bechtel II, slip op. at 5-6.
58 See L P. Cavett Co., 101 F.3d at 1115; Ball, Ball & Brosamer, Inc., 24 F.3d at 1449, 1452.
59 See Mt. Clemens Pottery, 328 U.S. at 687-688; see also Thomas & Sons, supra.