# H. B. Zachry Company v. The United States > United States Court of Claims · April 16, 1965 · 344 F.2d 352 URL: https://www.frixlaw.com/law-library/cases/9450644 ## Case - **Full name:** H. B. ZACHRY COMPANY v. the UNITED STATES - **Court:** United States Court of Claims - **Decided:** April 16, 1965 - **Citations:** 344 F.2d 352; 170 Ct. Cl. 115; 1965 U.S. Ct. Cl. LEXIS 245 - **Precedential status:** Published - **Opinion:** Dissent by Davis - **Judges:** Davis, Cowen, Laramore, Durfee, Collins - **Cited by:** 40 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9450644 ## Opinion text DAVIS, Judge (dissenting). I do not disagree with the court that factual as well as legal issues are properly before us and that Glover’s records of the hours worked by its drivers should be accepted. Nor do I differ with the other facts found by the court. I dissent, however, from the legal holding that Glover’s drivers were not covered by the Davis-Bacon Act. The court follows opinion DB-22 of the Solicitor of Labor (which is admittedly very close) in preference to the Department’s contrary opinion in this very case. I would put aside the administrative decisions, whether they be one way or the other. In this sector of its Davis-Bacon Act interpretations the Labor Department’s varied rulings recall the Minotaur’s labyrinth in the complexity of their turnings. Unlike Theseus, I have been unable to find the golden thread through the maze and must therefore escape onto the higher and easier ground of the statute itself. From that vantage post, I see these drivers as covered. Glover should be treated as plaintiff’s “subcontractor”, within the meaning of the Davis-Bacon Act. That is what Glover is called in the agreement it made with plaintiff, and that agreement is tied, in almost every pertinent clause, to the prime contracts plaintiff had with the Federal Government. The material hauled by Glover belonged to plaintiff, and was necessary for the plaintiff’s work under the prime contracts. Glover was not a supplier or a materialman in any ordinary sense; it was carrying the material for plaintiff, under an arrangement initiated by and with plaintiff — not the suppliers. If plaintiff had used its own employees for this part of the project, their wages would be subject to the Act (provided, as I think, they were employed “directly upon the site of the work”); Glover merely substituted its men for plaintiff’s in performing this aspect of the job. 1 Cf. Clifford F. MacEvoy Co. v. United States, 322 U.S. 102, 109 , 64 S.Ct. 890 (1944). Moreover, Glover expressly agreed “to comply with all applicable Federal and State Labor Laws and Regulations and to pay all persons employed hereunder the rates of pay provided by the general contract and by such laws.” The terms of the parties’ own understanding should not be conclusive where they attempt to avoid coverage under the Davis-Bacon Act, but I would hold them to their agreement when they themselves concur, in that agreement, that the secondary employer is a “subcontractor” and his men are to be paid under the Act. 2 Also, Glover’s drivers were, in my view, employed “directly upon the site of the work.” We need not decide whether drivers hired in like circumstances to haul material to a construction site are always under the Davis-Bacon Act; these men drove for a substantial time on Holloman Air Force Base which I regard as the minimal “site” under plaintiff’s contracts. 3 ****Substantial work on the site, *363 even though it be much the minor part of the employee’s total work, is enough for coverage. Cf. Walling v. Jacksonville Paper Co., 317 U.S. 564, 572 , 63 S.Ct. 332 , 87 L.Ed. 460 (1943); Mabee v. White Plains Publishing Co., 327 U.S. 178, 180-183 , 66 S.Ct. 511 , 90 L.Ed. 607 (1946); Crook v. Bryant, 265 F.2d 541, 543-544 (C.A. 4, 1959); Telephone Answering Service, Inc. v. Goldberg, 290 F.2d 529, 532 (C.A. 1,1961). The court agrees that, if the drivers were covered by the Davis-Bacon Act, there were a number of instances in which plaintiff (through Glover) failed to pay the wages called for by that legislation and the Eight Hour Law. I would remand to the trial commissioner for determination of such amounts. . The Labor Department’s regulations declare that “the terms ‘construction’, ‘prosecution’, ‘completion’, or ‘repair’ mean all types of work done on a particular building or work at the site thereof, * * * in the construction or development of the project, including, without limitation, altering, remodeling, painting, and decorating, the transporting of materials and supplies to or from the buiMing or worJc by the employees of the construction contractor or construction subcontractor, * * 29 C.F.R. § 5.2 (g) (emphasis added). . Under the Act and regulations, it is immaterial whether the drivers were technically “employees” of Glover or were “independent contractors.” See 29 C.F.R. § 5.2 (i). . The drivers spent at least 10% of their time on Holloman Air Force Base. Hol-loman was designated in the contracts as the place of performance. A special one-mile road, used by these drivers, was constructed, partially on the Base and partially on private property (which *363 could be said, for this purpose, to be part of the Base). The contracts specifically contemplated use by plaintiff and its subcontractors of parts of the Base, including roadways. In addition, the “Scope of Work” clause, declared that “the work to be performed under this contract consists of furnishing all plant, materials, equipment, supplies, labor, and transportation * * --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9450644. Public record. Not legal advice.