Appendix — Building & Construction Trades Department v. Donovan

Office - Supreme Court, US,

83-697 FILED

OCT 26 1983

ALEXANDER L. STEVAS,

3 LERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1983

No.

BUILDING AND CONSTRUCTION TRADES DEPARTMENT,

AFL-CIO, et al.,

Petitioners,

V.

RAYMOND J. DONOVAN, SECRETARY OF LABOR, et al.,

Respondents.

APPENDIX TO

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

LAURENCE J, COHEN

TERRY R. YELLIG

1125 15th Street, N.W.

Washington, D.C, 20005

ROBERT J, CONNERTON

PHILLIS PAYNE

1899 L Street, N.W.

Washington, D.C, 20036

LAURENCE GOLD

815 16th Street, N.W.

Washington, D.C. 20006

(202) 637-5890

(Counsel of Record)

WILSON . Eres Printing Co.. Inc. . 789.0006 . Wasninaron. 0. C. 20001

B ABP. 0

TABLE OF CONTENTS

United States District Court for the District of Co-

lumbia Circuit, Opinion and Judgment, July 5, 1983..

United States District Court for the District of Co-

lumbia Circuit, Order to Withhold Issuance of the

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United States District Court for the District of Co-

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lumbia, Memorandum Order, July 22, 1982 ..............

United States District Court for the District of Co-

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APPENDIX

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 83-1118

BUILDING & CONSTRUCTION TRADES’ DEPARTMENT,

AFL-CIO, et al.

Vv.

RAYMOND J. DONOVAN, SECRETARY OF LABOR, et al.,

Appellants

No. 83-1157

BUILDING & CONSTRUCTION TRADES’ DEPARTMENT,

AFL-CIO, et al.,

Appellants

Vv.

RAYMOND J. DONOVAN, SECRETARY OF LABOR, et al.

Appeals from the United States District Court

for the District of Columbia

(D.C. Civil No, 82-01631)

Argued May 6, 1983

Decided July 5, 1988

2a

J. Paul McGrath, Assistant Attorney General,. with

whom Stanley S. Harris, United States Attorney, Caro-

lyn B. Kuhl, Deputy Assistant Attorney General, Robert

E. Kopp, Anthony J. Steinmeyer, Frank A. Rosenfeld,

Attorneys, Department of Justice, and Karen I. Ward,

Associate Solicitor, Department of Labor, were on the

brief, for appellants/cross-appellees.

Lawrence Gold and Terry R. Yellig, with whom Law-

rence J. Cohen and Robert J. Connerton were on the

brief, for appellees/cross-appellants. Linda Lipsett also

entered an appearance for appellee in 83-1118.

Thomas S. Martin was on the brief for Associated

Builders and Contractors, Inc., amicus curiae urging re-

versal in 83-1118 and affirmance in 83-1157.

G. Brockwel Heylin and Michael E. Kennedy were on

the brief for Associated General Contractors of America,

Inc., amicus curiae urging reversal in 83-1118 and af-

firmance in 83-1157.

Before EDWARDS, Circuit Judge, and MCGOWAN and

MACKINNON, Senior Circuit Judges.

Opinion for the Court filed by Senior Judge MCGOWAN.

McGowan, Senior Circuit Judge: This appeal brings

before us on an expedited basis five provisions of certain

final rules issued by the Secretary of Labor (“the Secre-

tary”) under the Davis-Bacon Act, 40 U.S.C. § 276a

(1976), and the Copeland Anti-Kickback Act, 40 U.S.C.

§276c (1976). These statutes, essentially unchanged

since their enactment or amendment in the 1930’s, guar-

antee to workers on federal construction projects a mini-

mum wage based on locally prevailing wage rates. Three

of the new regulatory provisions of concern here would

alter the method for findingwthe prevailing wage. An-

other set of regulations would allow federal contractors

far greater freedom to use semiskilled helpers on projects

than has previously been permitted. The Secretary as-

8a

serts that this expanded use of helpers would better re-

flect the practice on private projects. The fifth provision

is intended to ease the regulatory burden on federal con-

struction contractors by reducing the detail required in

their weekly submissions to the government regarding

wages. All of the regulations under challenge are ex-

pected to reduce federal construction costs; the Secretary

has estimated that the last two provisions alone would

save the government or its contractors about $463 million

per year. See 47 Fed. Reg. 23,657, 28,662, 28,664 (1982)

(regulatory impact statement).

This action was brought by the AFL-CIO, sixteen AFL-

CIO unions or departments, and the Teamsters union

(“the unions’), seeking an. injunction against imple-

mentation of the new regulations and a declaration that

the rules are contrary to law. No claims of procedural

irregularity were pressed. The District Court granted

the requested relief in part. We affirm in part and re-

verse in part. We uphold all of the new regulations as

within the broad administrative discretion contemplated

by Congress, except for (1) the provision simplifying

submissions of wage data to the government, which we

find to be inconsistent with the language and purpose

of the statutory command that the submissions contain

wage data as to “each employee,” and (2) part of the

expanded permission to use helpers, which part we find

similarly contrary to statutory language and purpose.

I

As noted, the Davis-Bacon Act was enacted during the

Great Depression to ensure that workers on federal con-

struction projects would be paid the wages prevailing in

the area of construction. The evil sought to be remedied

was that, with the precise specifications set out in fed-

eral contracts and the increasing standardization of

building-material prices, the low-bidding contractor on a

federal job was generally the one who paid the lowest

4a

wages. See generally S. REP. No. 332, 74th Cong., 1st

Sess. pt. 2, at 4 (1935) (“variations between bids sub-

mitted by competing contractors are due most frequently

‘to different estimates of labor costs’). The contractor

would accomplish this by taking advantage of widespread

unemployment in the construction industry and hiring.

workers at substandard wages, often bringing a low-paid

crew in from distant areas. Jd. at 7-8.

This practice was deemed to be a problem for two rea-

sons. First, and apparently most important, it tended to

undercut one of the purposes of the massive federal build-

ing program of the times, which was to distribute em-

ployment and federal money equally throughout the coun-

try. S. Rep. No. 1445, 71st Cong., 3d Sess. 1-2 (1981).

Local contractors and workers, used to a certain wage

and living standard, could not compete with the migra-

tory labor of the winning bidder. Jd. at 2; see also 74

Conc. Rec. 6510 (1931) (remarks of Senator Bacon)

(“I think’it is a fair proposition where the Government

is building these post offices and public buildings through-

out the country that the local contractor and local labor

may have a ‘fair break’ in getting the contract.”); 10

Comp. Gen. 294, 295 (1931) (“‘The Government should

be the last employing agency to expect or countenance the

performance of its construction contracts at the sacrifice

of its citizens.’”) (quoting letter from Treasury Secre-

tary proposing administrative predecessor of Davis-Bacon

Act).

Second, the lower wages led to labor strife and to

broken contracts by contractors who speculated on the

labor market unwisely, thus preventing “the most eco-

nomical and orderly granting of Government contracts.”

S. Rep. No. 332, supra, pt. 2, at 8; see also 74 CoNa.

Rec. 6510 (1931) (remarks of Rep. LaGuardia) (“the

workmanship of the cheap imported labor was of course

very inferior’). Nevertheless, under a ruling by the

Comptroller General, federal contracting agencies could

5a

not insist on contractors paying the prevailing wage be-

cause of the statutory requirement that federal contracts

go to the lowest bidder. 10 Comp. Gen. 294, 301 (1931)

(prevailing wage requirement would “remove[{] from

competitive bidding on the project an important element

of cost and tend[] to defeat the purpose of the [low-

bid] statute”). Thus, legislation was called for.

The original Davis-Bacon Act was enacted in 1931 and

required that federal contractors on certain projects pay

the prevailing wage in the area, as determined by the

contractors. Any disputes over the contractors’ determi-

natiogs were to be referred to the Secretary for conclu-

sive determination. Davis-Bacon Act, ch. 411, 41 Stat.

1494 (1931). Dissatisfaction with this arrangement sur-

faced quickly, however, as widespread violations and

abuses were discovered. An attempt to provide for pre-

determination of the prevailing wage by the Secretary

and penalties for failure to pay that rate was vetoed by

President Hoover in 1932 as “obscure and complex and

. impracticable of administration,” 75 CONG. REc.

14,589 (1932) (veto message) ; see id. at 14,590 (“The

whole design of the new . . . proposal requires an ex-

pansion of bureaucratic control over activities which now

function effectively with the minimum of interference by

the Government and that only when dispute arises.’’).

Congress had greater success in 1935. It passed wage

predetermination and enforcement provisions that have

remained essentially unchanged to this day. The Act now

provides that the advertised specifications for every fed-

eral construction project in excess of $2,000 that requires

the employment of mechanics and/or laborers

shall contain a provision stating the minimum wages

to be paid various classes of laborers and mechanics

which shall be based upon the wages that will be

determined by the Secretary of Labor to be prevail-

ing for the corresponding classes of laborers and

mechanics employed on projects of a character simi-

6a

lar to the contract work in the city, town, village,

or other civil subdivision of the State, in which the

* work is to be performed.

40 U.S.C. § 276a(a) (1976). The construction contract

must contain a stipulation requiring that the advertised

wages be paid, and the applicable wages must be posted

at the site. Jd. The contracting agency is empowered

to withhold payment to ensure compliance with the mini-

mum wage requirements. Jd,

In response to some of the abuses prevalent under the

1931 act, Congress in 1934 also passed the Copeland

Anti-Kickback Act, which generally makes it a crime for

a federal contractor to require or coerce workers to re-

turn a portion of their contractual pay to their employer.

Copeland Anti-Kickback Act, ch. 482, §1, 48 Stat. 948

(1934) (codified as amended at 18 U.S.C. § 874 (1976)).

The section of the Copeland Act that is relevant here

directs the Secretary to make reasonable regulations for

federal contractors, “including a provision that each con-

tractor and subcontractor shall furnish weekly a state-

ment with respect to the wages paid each employee dur-

ing the preceding week.” 40 U.S.C. § 276c (1976).

The regulations at issue seek to implement these two

statutes. They would alter the present regulatory scheme

by (1) eliminating the so-called “thirty-percent rule”

by which a locally prevailing rate could be set at the

rate paid to a thirty-percent plurality of local workers;

(2) combining data from adjacent rural counties but

excluding any nearby urban counties when wage data in

a given rural county is insufficient to determine a locally

prevailing wage; (3) excluding from the prevailing-wage

calculation for most building projects wages paid on simi-

jar loca] projects that were subject to the Davis-Bacon

Act; (4) expanding the permitted use of semiskilled

helpers in a number of ways, including permitting such

a classification in areas where it is only an “identifiable”

practice rather than a “prevailing” one and eliminating

7a

the requirement that helpers may do only tasks distinct

from those undertaken by other classes of workers; and

(5) allowing contractors to submit a weekly statement

certifying compliance with Davis-Bacon wage require-

ments, instead of requiring the submission of the actual

weekly payrolls. See 47 Fed. Reg. 23,648, 23,657, 23,677

(1982) (to be codified at 29 C.F.R. § 3.3 and in scattered

sections of 29 C.F.R. pts. 1 & 5).

Shortly after the rules were promulgated on May 28,

1982, the unions brought suit seeking declaratory injunc-

tive relief. After a hearing on a motion for interim re-

lief and cross-motions for summary judgment, the Dis-

trict Court on July 22, 1982, five days before the new

regulations’ scheduled effective date, granted a prelimi-

nary injunction barring implementation of all five pro-

visions. Building & Construction Trades Department v.

Donovan, 543 F. Supp. 1282 (D.D.C. 1982). On Decem-

ber 23, 1982, the District Court granted summary judg-

ment for plaintiffs on four of the five provisions at issue.

Building & Construction Trades Department v. Donovan,

553 F. Supp. 352 (D.D.C. 1982). The court declined to

enjoin the elimination of the thirty-percent rule in the

formula for calculating the locally prevailing wages. As

to this provision, the court found that the statute left the

task of defining the term “prevailing wage” to the Secre-

tary, and that “Congress was fully aware that the defini-

tion might or would be adjusted depending on existing

conditions.” Id. at 354 (citing, inter alia, 74 ConG. REC.

6516 (1931) ; 75 ConG. Rec. 12,365 (1932) ).

The District Court found the statutory language and

legislative history as to the remaining four provisions

somewhat ambiguous, and relied heavily on contempora-

neous and consistent administrative practice as a clue to

Congress’s intent, The court relied most heavily—almost

exclusively—on this contrary administrative practice in

striking down the proposed exclusion of urban counties

from the prevailing wage ca!culation in rural areas and

8a

the exclusion of local Davis-Bacon projects from that cal-

culation. See id. at 353-54.

With regard to the remaining two provisions, the court

found, in addition to administrative practice; more direct

indications of congressional intent. The court struck

down the rule that a contractor need only submit a

generalized affidavit certifying compliance with wage

laws, rather than detailed payrolls, because the statute

by its terms required weekly statements as to the wages

paid “each employee,” 548 F. Supp. at 1288, and because

the new regulation “would render the Act largely un-

enforceable,” 553 F. Supp. at 354. The court overturned

the proposals for allowing increased use of semiskilled

helpers because the distinction that the Act intended to

draw between skilled and unskilled labor in practice could

be maintained “only if the tasks of the helper <lass are

defined as discrete and distinguishable from those of

laborers and mechanics,” id. at 355, and because allow-

ing contractors to use helpers when it was merely an

“{dentifiable” classification in the area would be contrary

to the statutory command that wages set by the Secre-

tary be “prevailing for . . . classes” in the area, 543

F. Supp. at, 1285.

Both parties appealed. We discuss each provision of

the new regulations in turn.

8

A. The Thirty-Percent Rule

Under a regulatory procedure in effect since 1935, the

Secretary follows a three-step process to determine the

prevailing wage for a given class of workers in a given

area. First, if any single wage is paid to a majority of

the workers in that class, that is deemed the prevailing

wage. Second, if there is no single wage paid to a ma-

jority of workers, any wage paid to at least thirty per-

cent of the workers is the prevailing wage. Third, if no

9a

single wage is paid to a thirty-percent plurality, then a

weighted average becomes the prevailing wage. 29 C.F.R.

§1.2(a) (1982); accord Labor Department Regulation

No. 503 §2 (1935), reprinted in Joint Appendix (J.A.)

at 180-81. The new regulation proposed by the Secretary

for defining the term “prevailing wage” would eliminate

the second step: if a majority of the workers in a given

class did not earn a single wage, then a weighted aver-

age would be used. 47 Fed. Reg. at 28,652 (to be codified

at 29 C.F.R. $1.2(a) (1)).

The rationale offered by the Secretary for the change

was that the thirty-percent rule does not comport with

the definition of “prevailing,” that it “gives undue weight

to collectively bargained rates,”’ and that it is inflationary.

Id. at 23,644, 23,645. The unions argue that the new

definition,does not fit within the common meaning of

“prevailing” and that Congress’s refusal to change the

statute in 1932 and 1935 when informed of the Secre-

tary’s policy of setting the prevailing wage at the rate

paid the greatest number of workers indicates that Con-

gress intended the prevailing rate to be the “modal” rate.

The unions also assert that under the new rule a third

or more of the wage rates issued by the Secretary would

be based on “artificial” averages rather than any actual

rate, which they say is contrary to the policy of the Act.

We affirm the District Court’s upholding of the new

rule, generally for the reasons stated in its opinion. See

553 F. Supp. at 354. In brief, the statute delegates to

the Secretary, in the broadest terms imaginable, the au-

thority to determine which wages are prevailing. See

40 U.S.C. §$ 267a(a) (1976) (“the wages that will be

determined by the Secretary of Labor to be prevailing”).

The legislative history confirms that it was envisioned that

the Secretary could establish the method to be used. See,

e.g., 74 CONG. Rec. 6516 (1931) (remarks of Rep. Kopp)

(“A method for determining the prevailing wage rate

might have been incorporated in the bill, but the Secre-

10a

tary of Labor can establish the method and make it

known to the bidders.”). There is no indication that

Congress’s failure to change the method used by the Sec-

retary since 1932 was intended to bind him to that

method forever, and we will not infer such an intent

when the statutory language is so plainly to the contrary.

Having determined that the statute empowers the Sec-

retary to adopt “regulations with legislative effect,” Bat-

terton v. Francis, 432 U.S. 416, 425 (1977) (interpret-

ing statute providing that term “unemployment” is to be

“determined in accordance with standards prescribed by

the Secretary”), our task is limited to ensuring that the

new definition is not one “that bears no relationship to

any recognized concept of [the statutory term] or that

would defeat the purpose of the [statutory] program.”

Id. at 428.' The Secretary’s new definition of “prevail-

ing” as, first, the majority rate, and, second, a weighted

average, is within a common and reasonable reading of

the term. Cf. 75 CoNG. Rec. 12,365 (1932) (remarks of

Rep. Connery, floor manager of 1932 amendments) (en-

dorsing an averaging method of determining the prevail-

ing wage). The definition also would not defeat the es-

sential purpose of the statute, which was to ensure that

federal wages reflected those generally paid in the area.

B. Exclusion of Urban Counties from Rural Wage

Determinations

The Secretary’s proposed regulations provide that,

where there has not been sufficient similar construction

in the county in which a project is located to determine a

prevailing wage, he is to look to wages paid on similar

construction in surrounding counties, except that projects

in metropolitan counties may not be used as a source

of data for projects in rural counties and vice versa.

47 Fed. Reg. at 23,655 (to be codified at 29 C.F.R.

§1.7(b)). The target of the unions’ attack in this case

is the final proviso regarding exclusion of urban counties

lla

from rural wage determinations,’ which the unions assert

is a departure from longstanding administrative practice

and inconsistent with congressional intent. Neither party

questions the Secretary’s basic claim of authority to look

beyond the county line if necessary to determine the pre-

vailing wage in the county in which the project is located.

Because the basis for this general recognition of ad-

ministrative authority is not entirely obvious, and be-

cause it is important to our upholding the new regula-

tion, some discussion of it is warranted.

The language of the statute instructs the Secretary. to

determine the wages that are prevailing for classes of

laborers and mechanics “employed on projects of a char-

acter similar to the contract work in the city, town, vil-

lage, or other civil subdivision of the State, in which

the work is to be performed.” 40 U.S.C. § 276a(a)

(1976). Although on its face this language would appear

to refer the Secretary only to projects in the same civil

subdivision as the contract work, no one has interpreted

it that way. Since at least 1935, the Secretary has rou-

tinely looked to nearby locales if there was insufficient

prior construction in the project county to determine a

prevailing wage. See, e.g., Labor Department Regulation

No. 503 § 7(2) (1935), reprinted in J.A. at 182 (if there

has been no similar construction in county in recent

years, “the report shall cover wage conditions in the near-

est large city”) ; 29 C.F.R. $1.8(b) (1982) (if no simi-

lar construction in area, “wage rate paid on the nearest

similar construction may be considered”) ; 21 Fed. Reg.

5801, 5802 (1956) (same). Further, as noted, neither

the parties nor the amici here seriously dispute that

construction.

1 Since there is usually enough similar construction in metro-

politan areas to provide data necessary to make a wage deter-

mination, the proviso would generally affect wage determina-

tions only in rural areas, where there tends to be less con-

struction.

12a

Most important, the legislative history of the statute

suggests that Congress contemplated that the Secretary’s

authority to determine prevailing wages extended to find-

ing the best way to do so. The Davis-Bacon Act itself

and the 1935 amendments passed through both houses

of Congress with no discussion of the problem of how the

prevailing wage would be determined in villages too small

to have a settled wage for the various crafts needed.

However, during the House debate on the vetoed 1932

amendments, which were substantially identical to the

1935 amendments on this point, the floor manager, Rep-

resentative Connery of Massachusetts, addressed the

question :

Mr. O’CONNOR. But there may be many vil-

lages that have no plumbers in them, men actually

working as plumbers. Bricklayers and metal workers

and other highly skilled trades may not be found in

a village in sufficient numbers to enable the Secre-

tary of Labor to establish a prevailing rate of wage.

Mr. CONNERY. I think the Secretary of Labor,

when he figures out these predetermined rates of

wages, will be able to determine that. Generally

there is a town near enough to ascertain the pre

vailing rate of wage for that town. If there is a job

in a little town in New York, there will be a city

near enough in order to determine the prevailing

rate of wage for that little town.

Mr. O’CONNOR. But the bill reads “in the city,

town, ae village where the public work is carried

on.” (2

MR. CONNERY. As a practical matter, they

Yhave had no trouble in that regard in connection

with the Davis-Bacon bill.

MR. O’CONNOR. If they limit it to the language

in this bill, there may be trouble about it.

2 The bill actually read “in the city, town, village, or other

civil subdivision of any State or Territories in which all or

the principal part of the particular contract work is located.”

75 ConG. Rec. 12,363 (1932) (first reading of S. 3847).

13a

MR. CONNERY. In the Davis-Bacon bill there

is the same proposition, and chey have been getting

along.

75 CONG. Rec. 12,866 (1982). See also id. at 12,877

(remarks of Rep. Connery) (‘The only practical way

the committee found [to determine the prevailing wage in

towns without wage scales] was that if you had a small

town between two large cities they would take the pre-

vailing wage scale of those two. cities.’’),

This passage, while not crystal clear, suggests that

Congress did not view the language in the statute as

foreclosing the Secretary from implementing the Act in

the way necessary to achieve its purposes. Clearly, if a

prevailing wage could not be set in a given county by

looking only to projects in that county, it was essential

to the attainment of the general purpose of Congre:s—

the predetermination of locally prevailing wages—that

another mechanism be found. In essence, Congress an-

ticipated that the general authorization to the Secretary

to set the prevailing wage would encompass the power to

find a way ts do so in the interstitial areas not specifi-

cally provided for in the statute. Cf. generally Permian

Basin Rate Cases, 390 U.S. 747, 780 (1968) (“we are,

in the absence of compelling evidence that such was Con-

gress’ intention, unwilling to prohibit administrative ac-

tion imperative for the achievement of an agency’s ulti-

mate purposes.’’).

In cases where there is insufficient data from a given

civil subdivision to determine a prevailing wage, there-

fore, the Secretary is acting pursuant to the same kind of

delegation of authority that we discussed above with re-

gard to the formula for deriving a prevailing wage from

the data collected, see supra p. 9. We thus do not think,

as the unions appear to argue, that Congress intended to

bind the Secretary to the method suggested by Repre-

sentative Connery—adopting for rural areas the prevail-

l4a

ing wages of the nearest city. The thrust of the pas-

sage is that the entire question was left to the Secretary.

Representative Connery’s suggestion was apparently in-

tended merely to show that some method of determining

a wage would be found. Moreover, no language was in-

serted into the statute that would implement the sug-

gestion, as one might expect for so specific an instruction.

We review the Secretary’s choice of methods only to

ensure that he is acting consistently with the purposes of

the statute and that his choice is not arbitrary. We think

it clear that the new regulation is rational and furthers

the purposes of the statute. The Secretary’s justification

for the provision was that, because of the disparity be-

tween urban and rural wages, using demographically dis-

similar counties for such determinations is unreliable. 46

Fed. Reg. 41,448, 42,445 (1981) (proposed rulemaking).

Furthermore, the Secretary claimed, importation of high

urban wages to rural areas has disrupted labor relations

in rural areas because employees have been unwilling to

return to their usual pay scales after a Davis-Bacon proj-

ect has been completed. See 47 Fed. Reg at 23,647. His

answer to the unions’ argument that higher urban wages

are justified in nearby rural areas because it is the urban

workers who often do the work was that if that is gen-

erally true the wage scales for the surrounding rural

counties would reflect that. Jd. All of this makes sense,

and the new regulation has not been shown to undermine

the central purpose of the statute, which is to ensure that

federal contractors pay the wages prevailing in the

locality of the project. While it might be true that in

some cases the reference rural counties might be more

distant from the urban center than the project county,

and that looking to them thus would not reveal the higher

wages that should be paid in the project county, the bare

allegation of that fact cannot overturn the Secretary’s

informed exercise of authority in an area in which he

has considerable expertise and discretion.

l5a

The District Court relied exclusively or almost ex-

clusively on what it saw as a longstanding and con-

sistent administrative practice contrary to the proposed

regulations in striking down the rural-urban wage de-

termination provision and the exclusion of federal proj-

ects from wage determinations, see infra pp. 16-21. See

553 F. Supp. at 3538-54; 543 F. Supp. at 1286-87. It

should be noted first that with regard to the exclusion of

urban data from rura] determinations the administrative

practice has not been quite as consistent as the District

Court, in the rush of its expedited proceedings, appears

to have been told. At least since 1977, the Secretary’s

Manual of Operations for Issuance of Wage Determina-

tions Under the Davis-Bacon and Related Acts has pro-

vided that “[g]enerally, a metropolitan county should not

be used to obtain data for a rural county (or visa [sic]

versa).” J.A. at 104. Moreover, it is not only the

present administration, but also that of President Carter,

that has sought to formalize this practice in new regu-

lations. See 46 Fed. Reg. 4805, 4814 (1981) (final rule)

(providing for exclusion of metropolitan counties except

in “extraordinary circumstances”), stayed, 46 Fed. Reg.

11,253 (1981), and replaced, 47 Fed. Reg. 28,648 (1982).

More fundamentally, our disagreement with the Dis-

trict Court’s heavy reliance on administrative practice

stems from our view that in promulgating these two rules

—excluding urban data from rural wage determinations

and excluding federal projects from all wage determina-

tions—the Secretary was acting in an area as to which he

had some discretion to reach a number of different results

rather than an area of pure statutory interpretation as

to which there is in theory only a single answer, As the

District Court recognized, see 543 F. Supp. at 1290,

prior administrative practice carries much less weight

when reviewing an action taken in the area of discretion,

when little more than clear statement is required, than

when reviewing an action in the field of interpretation,

16a

where it is thought that the agency’s contemporaneous

and consistent interpretation of one of its enabling stat-

utes is reliable evidence of what Congress intended. Com-

pare CBS v. FCC, 454 F.2d 1018, 1026 (D.C. Cir. 1971)

(decision under discretionary “public interest” standard),

and Greater Boston Television Corp. v. FCC, 444 F.2d

841, 852 (D.C. Cir. 1970) (same), cert. denied, 403 U.S.

923 (1971), with United States v. Leslie Salt Co., 350

U.S. 383, 395-97 (1956) (interpreting statutory terms

“debenture” and “certificate of indebtedness’).

C. Exclusion of Federal Projects from

Wage Determinations

The new regulations make a more dramatic break with

the past in excluding from the prevailing-wage calculation

prior federal or federally assisted projects subject to the

Davis-Bacon Act’s prevailing wage requirements. The

new rules provide that such projects are not to be con-

sidered in wage determinations for building and residen-

tial construction projects “unless it is determined that

there is insufficient wage data to determine the prevail-

ing wages in the absence of such data.” 47 Fed. Reg. at

23,652 (to be codified at 29 C.F.R. § 1.8(d)). The provi-

sion will not apply to highway and heavy construction

projects, id., where there is little nonfederal construction.’

The Secretary’s rationale for the provision is that in-

cluding federal projects in the wage determination skews

the survey results upward, contrary to the purpose of

*The Manual of Operations for Issuance of Wage Deter-

minations Under the Davis-Bacon and Related Acts defines

“residential construction” as “‘the construction, alteration, or

repair of single family houses or apartment buildings of no

more than four (4) stories in height”; “building construc-

tion” is other construction of “sheltered enclosures with walk-

in access”; “highway construction” means more or less what

it says; and “heavy construction” is a catch-all category that

includes such major projects as dams, railroads, ski tows,

subways, and canals. J.A. at 100-02.

17a

Congress. See id. at 23,645. Neither the District Court

opinion nor the unions dispute the factual basis for this

conclusion. Rather, the unions argue that the act and:

its legislative history, including congressional acquies-

cence to administrative practice, forbid exclusion of fed-

eral projects.

The language of the statute on this point refers to the

wages determined to be prevailing for laborers and

mechanics employed “on projects of a character similar

to the contract work.” 40 U.S.C. § 276a(a) (1976). The

unions point out, quoting the District Court’s opinion,

that this language mandates the Secretary to consider

“projects of a character similar,” not “private projects of

a character similar.” See 543 F. Supp. at 1286. Leaving

to one side the question of whether this point would

require the Secretary to consider wages paid on federal

projects if it no longer served the purposes of the statute

to do so, there is substantial evidence in the legislative

history and, more importantly, in the premises of the

Act, that suggests that Congress did not intend wages

on federal projects to be considered at all.

First, both the Senate and House reports to the orig-

inal 1931 bill open, after 2 summary recommendation

that the bill pass, with the following description of its

purpose: “The purpose of this measure is to require con-

tractors and subcontractors engaged in constructing, al-

tering, or repairing any public building of the United

States ... to pay their employees the prevailing wage

rates when such wage rates have been established by

private industry.” S. Rep. No. 1445, supra p. 4, at 1

(emphasis added) ; H.R. Rep. No. 2453, 71st Cong., 3d

Sess. 1 (1931) (emphasis added). When the act was in-

troduced onto the floor of the House, and several times

during the debate, the purpose to have federal wages

mirror those in private industry was reiterated. 74

ConG. Rec. 6505 (1931) (remarks of Rep. Welch) ; id.

at 6515 (Rep. Kopp) (“This bill simply requires the con-

18a

tractors not to pay less than is paid in private in-

dustry.”) ; id. at 6520 (Rep. Zihiman). (There was prac-

tically no debate on the bill in the Senate. See id. at

3918-19.)

We might be reluctant to rely on these somewhat off-

hand and isolated remarks in the legislative history were

it not that they so plainly reflect the true purpose of the

Act. The premise underlying the statute was that there

was something wrong with the federal bidding process

that prevented the government from achieving subsidiary

goals of its construction program that.a private contractor

might be able to attain. Because federal projects were re-

quired by statute to be awarded to the lowest bidder, the

government could not, as a private builder might, require

that fair wages be paid on the project in order to be sure

of quality workmanship, to ensure against labor strife,

maintain its name in the community, or, in the case

of the federal government, to pursue equitable distribu-

tion of public construction monies. Such substandard

wages might also have been more prevalent on federal

projects because of their national sponsorship, which

might have made them more likely to attract unscrupu-

lous pricecutters than a private, local builder, advertising

locally, would have been. Whatever the reason, the re-

sult was that workers on government building projects

were being paid less than their counterparts in neighbor-

ing private projects. Thus, the 1931 committee reports

state:

The Federal Government must, under the law,

award its contracts to the lowest responsible bidder.

This has prevented representatives of the depart-

ments involved from requiring successful bidders to

pay wages to their employees comparable to the wages

paid for similar labor by private industry in the

vicinity of the building projects under construction.

S. Rep. No. 1445, swpra p. 4, at 2; H.R. Rep. No. 2453,

supra p. 17, at 1-2; see also S. REP. No. 332, supra p.

4, at 8 (reviewing legislative history of the Act) (the

19a

problem of contractors paying below prior prevailing

wage and transporting cheap labor to jobs “was par-

ticularly true of Government contracts where competitive

bidding was in effect”); Regulation of Wages Paid to

Employees by Contractors Awarded Government Build-

ing Contracts: Hearings on H.R. 12, 122, 7005, 7254,

and H.J. Res. 38 Before the House Comm. on Labor,

72d Cong., Ist Sess. 15 (1932) (testimony of AFL

President William Green) (“Because contractors seeking

and securing Government contracts attempted to ex-

ploit -vorkers and pay them a rate of wages that was

far below the prevailing rate in private industries in

the respective localities where buildings were erected, we

strongly appealed to the Congress to enact this prevail-

ing rate of wage law.”); cf. id. at 63 (testimony of a

general contractor) (“[I]n river and harbor work...

I will guarantee [that] our company and all the private

companies are paying higher wages to the dredge men

than the Government is” when it acts as its own con-

tractor.). See generally supra pp. 3-5 (discussion of pur-

poses of Act).

With this as the Act’s premise, it would make no sense

to require the Secretary , when setting prevailing wages,

to include federal projects in his survey. Since the prob-

lem to be remedied was the low wages paid on federal

projects, to include them would only impede attainment

of the ultimate goal of counterbalancing the flaws in the

federal bidding system and equalizing federal and private

wages.

The fact that the Secretary almost immediately began

including federa] projects in his wage surveys does not

cast doubt upon this reading of congressional intent. The

unions acknowledge that the Secretary did so, as the Dis-

trict Court put it, “notwithstanding the congressional

mandate,” only because as the Depression deepened there

was very little private construction from which to derive

a private prevailing wage. 543 F. Supp. at-1286. There-

20a

fore, what the unions must argue is that Congress, in its

refusa] in the 1935 amendments to bar the Secretary

from using federal data, not only acquiesced in such use

but affirmatively required it.

What the unions and the District Court point to as evi-

dence that Congress intended to mandate the practice is

the change in the statutory language from wages “for

work of a similar nature” in the 1931 Act to wages “for

the corresponding classes of laborers and mechanics em-

ployed on projects of a character similar to the contract

work” in the 1935 amendments. Compare Davis-Bacon

Act, ch. 411, §1, 46 Stat. 1494 (1981) with 40 U.S.C.

§276a(a) (1976). What types of projects, the argu-

ment goes, could be more “of a character similar to the

contract work” than federal ones?

The legislative history is very specific as to the intent

of this change. After the passage of the 1931 Act, it de

veloped that craftsmen in some industries were paid

more than employees performing the same craft in other

industries. In the 1982 House hearings, one witness

gave the examples of riveters and electricians in the gen-

eral building industry who would receive a higher wage,

but would be employed far less steadily, than their breth-

ren in the shipbuilding field. Regulation of Wages Paid

to Employees by Contractors Awarded Government Build-

ing Contracts: Hearings on S. 3847 and H.R. 11,865 Be-

fore the House Comm. on Labor, 72d Cong., 1st Sess. 67

(1932) [hereinafter cited as Hearings on S. 3847] (testi-

mony of shipbuilding trade representative, proposing ad-

dition of “in the same industry” to statute). To clarify

that federal construction work wages should parallel the

construction work wages prevailing in the area, and not

the shipbuildii.g wages, Congress added the language that

the unions cite. The committee reports explain:

A provision in the bill makes clear the meaning of

the standard “prevailing . . . on work of @ similar

2la

nature.” The present language leaves some doubt

as to whether the statute refers to wages in the same

craft or wages paid on similar construction. The

provision would make the wage rates contained in the

specifications conform to those “prevailing” for “the

corresponding classes of laborers and mechanics em-

ployed on projects of a character similar to the

contract work.”

H.R. Rep. No. 1756, 74th Cong., Ist Sess. 3 (1935) ;

accord S. Rep. No. 1155, 74th Cong., 1st Sess. 3 (1935).

It was thus no part of Congress’s intent to require

the Secretary to include federal projects in his wage sur-

veys. Excluding such data was the path most consistent

with the purposes of the statute. The Secretary never-

theless exercised his discretion to include these projects

as a necessary expedient during the Depression in order

to achieve the ends of Congress. See generally supra p.

18 (implied power to take action imperative for the

achievement of the statute’s purpose). To continue to

include them now that federal wages are far above those

paid in the private sector, however, would only exacerbate

in the opposite direction the kind of problem—an in-

equality between federal and private wages—Congress

was seeking to avoid. The fact that no Secretary has

previously abandoned the practice does not take away

from the current Secretary’s power to fine tune his exer-

cise of discretion.

D. Expanded Use of Helpers

Under current practice, the Secretary recognizes five

classes of employees covered by the Act: skilled journey-

men; unskilled laborers; and semiskilled apprentices,

trainees, and helpers. The journeyman and laborer classes

are well-defined and universally recognized; the former is

generally identified with the traditional crafts, such as

electrician or roofer, and often defined by whether the

employee uses the tools of the trade. Apprentices and

trainees, as the terms imply, are employees learning the

22a

journeyman’s craft and therefore are permitted to do

some traditional journeyman’s work, but they must be

enrolled in a formal apprenticeship or trainee program

approved by the Secretary. See 29 C.F.R. $§ 5.2(c),

5.5(a) (4), 5.15 (1982). The Secretary currently recog-

nized a helper classification only if (1) the scope of the

helpers’ duties—meaning the physical tasks performed—

is defined and can be differentiated from that of journey-

man duties, and (2) the particular helper classification

prevails in the area. See 47 Fed. Reg. at 23,647, 23,649,

23,659; DeNarde Construction Co., Case No. 78-3, at 2

(Wage Appeals Bd. May 14, 1979), reprinted in Plain-

tiffs’ Reply Memorandum of Points and Authorities in

Support of Their Motion for Summary Judgment, exhibit

2, Record at 14.*

The new regulations would alter both of these limita-

tions on the use of helpers on federal construction jobs.

First, they would allow some over!2p between the duties

* Occasionally, but not always, a third criterion for recog-

nition of a helper classification is mentioned: “the helper is not

used as an informal apprentice or trainee.” 47 Fed. Reg. at

23,649. But see id. at 23,647, 23,659 (not mentioned) ; DeNarde

(same). This criterion appears to have been eliminated in

the new regulations. The parties have not focused on it, how-

ever, and therefore neither do we.

The requirement that a classification be prevailing in an

area also applies to journeymen and laborers, but appears

not to apply to apprentices and trainees. See 29 C.F.R.

§1.2(a) (1982) (Secretary sets prevailing wage rate “for

each classification of laborers and mechanics which [he] shall

regard as prevailing in an area”) ; id. § 5.5(a) (4) (i). (appren-

tices permitted to earn less than predetermined wage for the

work they perform, if they are registered) ; id. § 5.5(a) (4) (ii)

(same for trainees). The new regulations would eliminate

the prevailing-in-the-area requirement for journeymen and

laborers, see 47 Fed. Reg. at 23,655 (to be codified at 29 C.F.R.

§1.7(d)) (“Classifications and wage rates will be issued for

identifiable ‘classes of laborers and mechanics,.’”), but the

unions do not complain about this provision.

23a

of helpers and those of journeymen. While some dis-

tinction between skilled and semiskilled tasks would be

retained, the essential functional distinction would be not

the nature of the task done but rather the subordinate

position of the helper vis-a-vis a journeyman. The new

classification would be defined as follows:

A “helper” is a semi-skilled worker (rather than a

skilled journeyman mechanic) who works under the

direction of and assists a journeyman. Under the

journeyman’s direction and supervision, the helper

performs a variety of duties to assist the journeyman

such as preparing, carrying and furnishing materials,

tools, equipment, and supplies and maintaining them

in order; cleaning and preparing work areas; lifting,

positioning, and holding materials or tools; and other

related, semi-skilled tasks as directed by the journey-

man. A helper may use tools of the trade at and

under the direction and supervision of the journey-

man. The particular duties performed by a helper

vary according to area practice.

47 Fed. Reg. at 23,667 (to be codified at 29 C.F.R. § 5.2

(n) (4)); see also id. at 23,668 (to be codified at 29

C.F.R. §5.5(a) (1) (ii) (A) (1)) (when new categories

not listed in wage determination are added to contracts,

work to be performed by new classifications must not

be performed by any existing classification, except as to

helpers.). The second major change in the permitted use

of helpers is that any given helper classification would

need to be only “identifiable,” rather than “prevailing,”

in the area in order to be included in the wage determina-

tion for a project: Id. at 23,655 (to be codified at 29

C.F.R. § 1.7(d)).

In addition, the new regulations would provide a new

numerical limitation on the use of helpers under which

there could be no more than two helpers for every three

journeymen, i.e., a maximum of forty percent of the

total number of helpers and journeymen could be helpers.

Id. at 23,670 (to be codified at 29 C.F.R. § 5.5(a) (4) (iv)).

24a

Also, if a worker listed on the payroll as a helper per-

formed duties outside the definition provided in the regu-

lations, or exceeded the forty-percent limitation, the

worker would have to be paid the applicable wage for the

work he or she actually did. Jd.*

The Secretary’s rationale for allowing expanded use of

helpers was that the present limitations do not reflect

“the widespread industry practice” of employing both

particular craft and general utility helpers on construc-

tion projects. Id. at 28,647. The Secretary estimated

that the expanded use of helpers would save the govern-

ment $363.16 million in construction costs. Jd. at 23,651.

In addition, he stated, the new rules would increase job

opportunities for less skilled workers, including young

people, women, and minorities; encourage training; in-

crease productivity; and enable more contractors to com-

pete for government work. Id.

This last reason is presumably based on the fact that

unions have historically permitted very limited use of

helpers, seeking instead to ensure demand for skilled jour-

neymen and the integrity of the apprenticeship route to

that position. See, e.g., id. at 23,651 (“there are few help-

ers in union firms’) ; A. THIEBLOT, THE DAVIS-BACON ACT

154 (1975), reprinted in Record at 3893, 3978 (71.1% of

nonunion contractors and 16.1% of union contractors sur-

veyed use helpers for various crafts) ; S. SLICHTER, UNION

POLICIES AND INDUSTRIAL MANAGEMENT 46 (1941) (“The

building trades . . . undertake to prevent helpers from

becoming competitors of journeymen by regulating the

© There are two other provisions that would apply to the use

of helpers. First, an existing contract that does not contain

@ helper classification could be altered to allow the expanded

use permitted by the new regulations. Jd. at 23,668 (to be

codified at 29 C.F.R. § 5.5(a) (1) (ii) (A)). Second, variances

from the 40% rule could be obtained in areas where the cur-

rent practice allows use of helpers in excess of forty percent

of the total number of helpers and journeymen. See id. at

23,659.

25a

work of the helper in such a way that he does not have

an opportunity to learn the trade,” such as by prohibiting

him from using the tools of the trade.); Affidavit of

Herbert R. Northrop (Wharton School Professor of In-

dustry), J.A. at 108 (“More efficient deployment of labor

[such as by allowing extensive use of helpers] is one rea-

son why open shop construction today controls 65 percent

of all construction ... .”); Affidavit of Robert A. Geor-

gine (President, AFL-CIO Bldg. & Constr. Trades Dept.),

J.A. at 122-23 (collective bargaining agreements preciude

many contractors from taking advantage of the changes

in the new regulations). Apparently, the Secretary be-

lieves that more nonunion contractors would be able to

compete for government jobs under the new regulations

because they would be able to use the employee classifica-

tion system that they are accustomed to using. See Af-

fidavit of John L. Fiedler (construction firm president),

J.A. at 114 (“[A] contractor who regularly uses helpers

on privately funded construction work must reclassify

helpers when he does work subject to the Davis-Bacon

Act. ... [T]his is economically unwise, since the pro-

ductivity of the worker is not commensurate with his

wage. Therefore, many merit shop contractors are de-

terred from performing federal or federally assisted con-

struction contracts.”) .*

*It is unclear whether the Secretary, in finding that more

contractors would be able to compete for government work

under the new rules, simply ignored the likely decrease in the

number of unionized contractors who would be able to com-

pete for such work, see Affidavit of Robert A. Georgine, supra,

J.A. at 122-23, or instead believed that that decrease would be

more than offset by the increase in nonunion bidders.

The unions disputed many of the claimed benefits of the

expanded use of helpers, arguing inter alia that the new rules

would discourage apprenticeship and training programs be-

cause contractors would find it easier simply to hire helpers to

fuiall their need for semiskilled labor rather than set up a

formal program. Because helpers receive far less training than

do apprentices, the unions argued, the new rules would tend to

26a

We consider first the provision that a helper classifica-

tion need only be “identifiable” in an area to be used,

and second the enlarged definition of a helper’s duties.’

1. “Identifiable” Classifications

The provision requiring that a helper classification need

only be “identifiable” in an area must be struck down

because it operates to undermine the fundamental pur-

pose of the Act: that wages on federal construction

projects mirror those locally prevailing. We think it

plain that, in the scheme of the Act, either of two meth-

ods will serve to lower the wages paid for certain work

below those paid for the same work in the surrounding

community. First, the work may be classified as it is in

deny advancement to minorities, young people, and women,

and would lead to a shortage of skilled craftsmen. See, e..,

47 Fed. Reg. at 23,647; Affidavit of Ray Marshall (former

Labor Secretary), J.A. at 133, 138-40. In this court, the

unions rely largely on the argument that the new regulations

are directly contrary to the language and intent of the statute

rather than on the ill effects of the changes.

7 The District Court enjoined the operation of all the new

regulations governing the use of helpers, including the 40%

rule, the procedure for conforming existing contracts to the

new regulations, and the procedure for a variance from the

40% rule for certain existing projects. See 543 F. Supp. at

1292 (preliminary injunction); 553 F. Supp. at 856 (perma-

nent injunction). Nevertheless, like the unions in this court,

the District Court only discussed the expanded definition of

“helper” and the provision that a helper classification need

only be “identifiable” in an area to be used. Evidently, the

court regarded the helper provisions as a package, the essential

elements of which were the two that it discussed; once those

were struck down, there was no need to deal with the others

since the Secretary would surely redraft the package, perhaps

changing the minor aspects of it in the process. Not having

the benefit of any significant discussion of the issues, we de-

cline to rule on these aspects of the helper provision. Should

the Secretary include them in any reissued rules, we will not

be barred from considering them then,

27a

the community—as, say “carpenter work”—but a lower

wage may be paid for that classification than is paid in

the community. Second, the same wage rate may be set

for each job classification, but the work may be classi-

fied in a lower paying category—such as “carpenter‘s

helper work”—than it is in the community. Thus, if a

given lower paid job classification need only be “iden-

tifiable” in the community to be used on a government

construction site, the wages paid for some work may

well be less than those “prevailing” for that work in the

community. To take a simplified example, suppose that

unions dominate the construction industry in a certain

city and require that any worker using carpenters’ tools

be a journeyman carpenter or apprentice. Nevertheless,

suppose that one or two nonunion firms in the city use

lower paid carpenter’s helpers to rough-cut beams. In

that case, a federal project that permitted workers who

rough-cut beams to be termed “carpenter’s helpers,” be-

cause such a classification could be “identified” in the

city, would not be paying the wage prevailing for the

corresponding class of workers in that city. The prevail-

ing wage for that kind of work would actually be the

union wage for journeyman carpenters or apprentices.

We need not rely merely on logic to know that use of

a less-than-prevailing classification may result in pay-

ment of lower wages than those prevailing in the com-

munity for the same work,.and that that is prohibited

by the Act. Congress in 1985 was quite clear that it

understood that “prevailing wage scales [could be] broken

down by intermediate classification,” S. REP. No. 382,

supra p. 4, pt. 3, at 12, and that such “underclassifi-

[eation],” id., was an evasion of the Act. The Senate

committee reviewing the operation of the law in 1935

described the problem as follows: “The act also fails to

be explicit on the matter of classification, with the result

that many contractors were able to circumvent the law

by hiring mechanics as common laborers, and then assign-

28a

ing them to tasks which fell within the purview of one

of the skilled crafts.” Id. pt. 2, at 5; see also id. at 2

(listing creation of “arbitrary classifications known as

semiskilled labor’ as a method or device “to underpay

labor” engaged on public works programs). The report

gave the example of “rough ‘saw and hammer’ men”

working on Public Works Administration projects who

were paid at a rate considerably less than [the

wages] prevailing for carpenters, although the work

being performed was regarded by labor-union regu-

lations as carpentry work. In a similar way, new

grades and classifications sprang up all over the

country, permitting high-grade skilled laborers to

be placed in lower categories so that their rates of

pay were less than those prevailing for skilled labor.

Id, pt. 3, at 12,

Although the 1985 committee recommended that the

“classification” question “should be clarified by new legis-

lation,” id. pt. 2, at 5, it is not clear whether the statutory

language regarding “classes of laborers and mechan-

ics” was added with this in mind. See infra pp. 31-36.

The House and Senate reports on the bill itself mention

this language only with regard to the somewhat different

problem of differing wages being paid for the same craft

in different industries. H.R. Rep. No. 1756, supra p. 21,

at 3; S. Rep. No. 1155, supra p. 21, at 3; see supra pp.

20-21. Nevertheless, various references in the legislative

history strongly suggest that Congress thought either

that such underclassification was already barred—for ex-

ample, the earlier 1935 committee’s references to con-

tractors that “circumvent the law” and its conclusion

that the law should be “clarified”—or that it certainly

would be under the law as amended, see Hearings on S.

8847, supra p. 20, at 110 (remarks of Rep. Welch) (“If

that were brought to the attention of the Secretary of

Labor, if this bill were in full force and effect .... [he]

would not permit it....”).

29a

What is clear is that Congress regarded underclassi-

fication as contrary to the purposes, and most probably

to the terms, of the Act. We have concluded that the

Secretary’s identifiable-classification regulation would vir-

tually ensure underclassification in union-dominated areas.

At least where the Secretary has not found the use of

helpers as provided for in the new rules to be a nearly

universal practice, see 47 Fed. Reg. at 23,647 (practice

is merely “widespread”); Affidavit of John T. Dunlop

(former Labor Secretary), J.A. at 188 (“The fact is that

helpers exist in some areas and in some trades, and not

in others.”),* he is barred from allowing work that is

“prevailing” categorized in one job classification to be

placed in a lower paid classification merely because such

a practice can be “identified” in the area.

2. Definition of Helper Duties

While we thus think it clear that the provision allow-

ing use of helpers wherever the classification is “iden-

tifiable’ must be struck down, whether the broadened

definition of a helper’s duties may stand is a far closer

question. The issue is essentially this: if it is the pre-

vailing practice in a community to allow lower paid but

supervised helpers to undertake tasks that overlap with

those of higher paid journeymen or laborers, may the

*We do not here attempt to define all the circumstances

under which a new class of employees must be prevailing in

an area before the Secretary may allow its use. We merely

suggest that there may be some circumstances in which, per-

haps for reasons of administrative convenience or because of

a need to further some other congressionally expressed policy,

e.g., National Apprenticeship Act, 29 U.S.C. § 50 (1976) (Sec-

retary is directed “to bring together employers and labor for

the formulation of programs of apprenticeship”), or for other

reasons, the Secretary could provide for classifications that do

not prevail in a certain area. No such reason appears here.

The propriety of eliminating the requirement that classifica-

tions of journeymen and laborers be prevailing in an area is

not before us. See supra note 4.

30a

Secretary allow that practice to be followed on federal

projects in that town? The central objection to the Sec-

retary’s new regulation is that it would no longer define

the “classes” of laborers and mechanics by the tasks a

particular employee does, but rather in large part hy

whether he or she is acting under the supervision of a

journeyman. See 553 F. Supp. at 355 (“the new regula-

tions would allow helpers . . . to perform tasks of all

sorts”) ; 543 F. Supp. at 1285 (“Under the new regula-

tions, helpers not only are not defined in traditional

terms, but they may perform any task throughout the

entire construction field... .”).°

°A more fundamental objection to the Secretary’s new

regulations might be that the Davis-Bacon Act does not con-

template any semiskilled labor classifications whatsoever. This

objection, not clearly pressed on us, see infra, would be based

primarily on the fact that the statute speaks only of “laborers

and mechanics,” and not of “helpers.” There is some legislative

history supporting such an interpretation of the statute. For

example, the report of the Senate committee investiyating

the operation of the Act in 1935 cited the following practice

as a “device[] ... to underpay labor”:

Instances of failure by Federal Emergency Relief Ad-

ministration officials to pay the prevailing wage on Public

Works projects, and the creation by such officials of arbi-

trary classifications known as semiskilled labor specifically

prohibited by the Federal Emergency Relief Administra-

tion regulations,

S. Rep. No. 332, supra p. 4, pt. 2, at 2 (emphasis added).

There are, however, indications elsewhere in the legislative

history that Congress used the term “laborers and mechanics”

to mean all manual workers on construction sites, and not to

exclude semiskilled employees. For example, at the end of the

part of the Senate report just quoted, the committee recom-

mended amendment of the Act so that it would require that

the specifications for any project which “involve[d] the em-

ployment of mechanics and/or laborers . . . contain a pro-

vision stating the minimum wages to be paid various classes

of skilled, unskilled, and intermediate labor,” and that the

contracts for such projects obligate the contractor to pay

“all mechanics and laborers employed” the wages in the speci-

8la

There is some legislative history that suggests that

Congress in 1935 was thinking of a task-based definition

of “classes” when it spoke of the problem of “underclassi-

fications. Id. at 9 (emphasis added). Since it would make

no sense to set wages for intermediate or semiskilled workers

if they were not to be covered by the Act, it appears that the

committee thought the term “mechanics and laborers” in-

cluded some intermediate classifications other than skilled and

unskilled labor. (The language “skilled, unskilled, and inter-

mediate labor” was replaced by the phrase “laborers and

mechanics” before the amendments were enacted, but no ex-

planation of the change appears. The change may have been

intended merely to make the language of the statute, which

refers to “laborers and mechanics” thirteen other times, con-

sistent throughout. In any case, the fact that the two phrases

could appear so close together in a considered committee

recommendation in which they must be read to refer to the

same categories of workers suggests that it was not assumed

by all that the two were contradictory.) Moreover, elsewhere

in its report the committee plainly used the term “laborers and

mechanics” to mean manual workers generally, with no

thought of excluding seriskilled workers. See, e.g., id. at 1

(“public hearings were conducted and testimony of 100 wit-

nesses (laborers and mechanics, representatives of labor, con-

tractors, and representatives of various Government depart-

ments) was received”) (emphasis added).

In addition, it appears that the Federal Emergency Relief

Administration (FERA) regulations referred to in the Senate

report themselves recognized semiskilled labor classifications,

the wage rates for which were to “depend upon local custom.”

Federal Civil Works Administration Rules and Regulations

No. 10 at 2 (1933), reprinted in J.A. at 198 (the Civil Works

Administration was an arm of the FERA). Thus, what the

committee referred to as a device to underpay labor in vio-

lation of the FERA regulations must not have been the use of

intermediate classifications per se, but the “creation” of “arbi-

trary” semiskilled classifications not reflected in local practice,

in order to underpay skilled labor.

Further support for a reading of the statute that does not

bar the use of semiskilled classifications entirely is provided

by the Secretary’s longstanding interpretation of the Act to

allow at least a limited use of helpers. See supra pp. 21-22. Also,

the District Court in this case clearly thought the current use

32a

fication.” For example, the 1935 Senate committee con-

sidering the operation of the Act described the problem

of contractors assigning to common laborers “tasks which

fell within the purview of the skilled crafts,” see supra

p. 28 (emphasis added), and referred to the “rough saw

and hammer men” category as a violation of the rule

that “any man using carpenter’s tools shall be paid car-

penter’s wages,” S. REP. No. 332, supra p. 4, pt. 3, at 17.

Nevertheless, we do not think Congress intended to

bind the Secretary to the job classification existing at

that time, but rather merely spoke against a background

of the task-based union practice being the prevailing one.

The Senate report seems to take some pains to point out

of helpers was permitted by the Act. See 543 F. Supp. at 1285.

Moreover, the unions in this court appear not to quarrel with

this view, for they quote the District Court’s opinion at

length and endorse its conclusions, see Brief for Appellees-

Cross-Appellants at 31-33; elsewhere they argue that Con-

gress’s intent in this regard “had been consistently recognized

and followed by the Secretary of Labor” until the challenged

regulations, id, at 43. But see id. at 38-39 (disputing the gov-

ernment’s view that the Senate committee accepted the use of

legitimate semiskilled classifications). (The unions’ position

was unequivocally stated in their memoranda filed in the

District Court: “[W]Je do not take the position that Congress

precluded recognition of semiskilled helpers under the Davis-

Bacon Act. ... Quite clearly, the Davis-Bacon Act does allow

recognition o° semi-skilled workers when they do, in fact,

represent a prevailing practice and form a distinguishable

class who perform discrete tasks.” Plaintiffs’ Reply Memo-

randum of Points and Authorities in Support of Their Motion

for Summary Judgment at 10, 11, Record at 14 (emphasis in

original) .)

While we think the argument that any helper classification

was barred by the statute is at least colorable, the long-held

view of the Secretary and the legislative history of the statute

taken as a whole persuade us to agree that the Secretary is

empowered to recognize at least some form of semiskilled

classification. The remainder of the present section considers

whether the specific definition of “helper” proposed by the

Secretary is barred by the statute.

33a

that the reason the “rough saw and hammer men” clas-

sification resulted in underpayment of labor was that it

was “a direct violation of the union rule in general effect

throughout the country,” id. (emphasis added); see id.

at 12 (the work being performed “was regarded by labor-

union regulations as carpentry work’).

Moreover, there is no language in the statute that

might be said to implement the supposed intent to man-

date the union classification scheme. The only otherwise

unexplained change worked by the 1935 amendments was

the addition of the phrases “various classes of laborers

and mechanics” and “corresponding classes of laborers

and mechanics” in place of the 1931 reference to the rate

of wage for “all laborers and mechanics.” We see noth-

ing inherently task-oriented about the term “classes.” It

seems likely that the addition of the word “classes” was

intended merely to describe in a general way the nature

wf the wage predetermination the Secretary was to make

under the new statute. Had the amendments required

only that advertisements for bids contain “a provision

stating the minimum wages to be paid all laborers and

mechanics which shali be based upon the wages .. . pre-

vailing for work of a similar nature,” it might conceiv-

ably have been thought that a single minimum wage was

to be set for construction work rather than a set of wages

for the various classes or grades of workers involved.*®

1° The vetoed 1932 act contained the term “grades” instead

of “classes.” The legislative history does not reveal the reason

for the change, although it may have been to counter an inter-

pretation of the word “grades” that was advanced by Presi-

dent Hoover’s Secretary of Labor in a memorandum that ac-

companied the President’s veto message. Secretary Doak wrote

that the new law would

require[] the determination of the rate of wages for the

“various grades of mechanics and laborers,” clearly indi-

cating that the rate is to be determined not only for the

different trades, as bricklayers and carpenters, but for the

different grades of such workers within each trade, which

84a

Further evidence that Congress did not intend to man-

date the then-existing union practice is that, as the unions

here admit, Congress specifically rejected a scheme where-

by wages would be set at the union wage in all areas.

See Wages of Laborers and Mechanics on Public Build-

ings: Hearing on S. 5904 Before the Senate Comm. on

Manufactures, T1lst Cong., 3d Sess. 9 (1931); Brief for

Appellees-Cross-Appellants at 60; Reply Brief for

Appellees-Cross-Appellants at 6. The following exchange

during the House debate on the 1932 bill clearly indicates

the congressional intent on the matter:

Mr. JOHNSON of South Dakota. ...I want to

know if the union scale is to govern in all matters

in this bill, particularly in those cities where I am

convinced the racketeering end of union labor has

taken control.

Mr. CONNERY. The Secretary of Labor is the

final arbiter, and I do not believe that he has taken

the union scale absolutely. He has taken the prevail-

ing rate of wage in those cities.

Mr. JOHNSON of South Dakota. Then it would

not be the intention of the chairman of the com-

mittee [Mr. Connery] that the union scale in all

cases would be the prevailing rate?

Mr. CONNERY. Personally, that is what I would

like to see.

would require an official determination of the comparative

efficiency of individual workers employed on the work by

the contractor or subcontractor.

75 Conc. REc. 14,589 (1932). The new term “classes” may

have been inserted to assure that qualitative evaluations of

workers within a certain type need not be made. Prior to

the 1932 act, concerns about underclassification were voiced

similar to those expressed prior to the 1935 amendments, see

Hearings on S, 3847, supra p. 20, at 109 (testimony of ship-

building trade representative) (“in the shipyards the line be-

tween the mechanic and the helper and the semiskilled man has

been very largely broken down’), suggesting that the change

from “grades” to “classes” was not intended to take into ac-

count new information on underclassification.

35a

Mr. JOHNSON of South Dakota. It would not be

so construed in the bill if it is passed?

Mr. CONNERY. No.

75 Conc. Rec. 12,377 (19382); accord id. 12,879 (re-

marks of Rep. Ramspeck) (in some cases, the Secretary

has not required the union scale). Since, as we have dis-

cussed, wage rates and classifications are essentially two

sides of the same coin—they must be fixed in tandem to

ensure that a given wage will be paid for given work—

Congress’s rejection of the then widespread union pay

scales as the conclusive basis for the Secretary’s prede-

termination of wages suggests that it similarly favored

localiy prevailing practices over the union classification

scheme.

At bottom, we are unwilling to read the fairly ambigu-

ous legislative references to a task-based classification

system in such a way as to vitiate the clearly expressed

congressional purpose to have federal wages mirror

those prevailing in the area. See, e.g., S. REP. No.

509, 72d Cong., 1st Sess. 2 (1932) (“This bill will in no

way interfere with the natural increase or decrease of

prevailing wage scales... .”); H.R. Rep. No. 1756,

supra p. 21, at 1 (The bill’s “object is to reinforce and

extend the principle of . . . the ‘Bacon-Davis Act’...

which requires the payment of the prevailing rate of

wages to laborers and mechanics employed” on federal

projects.) ; see also H.R. Rep. No. 308, 88th Cong., 1st

Sess. 2 (1963) (the Act “was designed ... to prevent the

disturbance of the local economy’). Yet were the Secre-

tary barred in all cases from allowing helpers to do

work that overlaps with the tasks done by journeymen,

the wages paid on federal projects for certain work would

sometimes not be the same as those prevailing in the

area for the same work.

We do not say that there is no content to the statutory

term “classes.” See generally Donahue, The Davis-Bacon

Act and the Walsh-Healey Public Contracts Act: A Com-

parison of Coverage and Minimum Wage Provisions, 29

36a

Law & CONTEMP. Props. 488, 508 (1964) (written by

Labor Dep’t Solicitor) (“(T]he Secretary generally

takes the local corresponding classes of laborers and

mechanics as he finds them, although he may not use

criteria which detract from the term ‘classes,’ as used in

the act.”). We simply say that the core concept of that

term—that those things within the class be differentiable

from those things outside of it—is not weakened by a

definition that makes the common element supervision by

journeymen rather than use of tools.

The unions and the District Court present a subtler

argument than one based on a direct congressional intent

to define “classes” in a certain way. They appear to agree

that the legislative history discussed above suggests only

that Congress was aware of the need to prevent workers

doing skilied work from being underpaid by being classi-

fied as semiskilled employees. The “crux” of the argu-

ment, as the District Court put it, is that “in practice”

the distinction between skilled and unskilled or semi-

skilled labor “can be maintained only if the tasks of the

helper class are defined as discrete and distinguishable

from those of laborers and mechanics.” 553 F. Supp. at

855. The argument is, in other words, that as a prac-

tical matter the Secretary is wrong to think that his de

finition is capable of enforcement, because it is simply too

difficult to tell a helper from a journeyman on a job

Site.

We agree that discerning whether a person using cer-

tain tools is being directed and supervised by a journey-

man is far harder than merely telling whether that per-

son is using the tools of the trade. Nevertheless, there is

a substantial policy that argues against simply choosing

a rough and simple distinction, and that is that such a

distinction might mean the wage scales on federal work

would no longer reflect the prevailing practice in the

area, which would be counter to the central purpose of the

Act. We think the Secretary is entitled to try to come

closer to achieving that purpose than his predecessors

87a

have. Cf. American Trucking Associations v. Atchison,

T. & 3.F. Ry., 387 U.S. 397, 416 (1967) (“[Wle agree

that the Commission, faced with new developments or in

light of reconsideration of the relevant facts and its

mandate, may alter its past interpretation and overturn

past administrative rulings and practice.’’).

The change may mean that some unscrupulous con-

tractors will find it easier to shift what the prevailing

practice denominates journeyman work onto helpers, but

we find it difficult to second-guess the Secretary’s view

that he can catch them. We do not mean that we can-

not review the Secretary’s decision against a charge that

he has effectively abandoned the field. But our defer-

ence to his choice is properly near its greatest when his

decision turns on the enforceability of various regula-

tory schemes. He and not the courts can best balance

such shifting dynamics as the incentive to violate the

rules, the willingness of construction workers and com-

petitors to complain, the ability of his inspection staff to

respond and to discover violations, and the effectiveness

of sanctions. See, e.g., FCC v. WNCN Listeners Guild,

450 U.S. 582, 596-97 (1981) (“predictions as to the

probable conduct of licensees and the functioning of the

broadcasting market and . . . the Commission’s assessment

of its capacity to make the determinations required by

[the alternative approach] ... are within the institu-

tional competence of the Commission’’).

Moreover, it is important to note that in this case

the Secretary is not overturning a policy that has worked

* to perfection. He has concluded that “the current policies

regarding semi-skilled crafts do not adequately reflect

construction industry practices, in particular, the wide

spread use of helpers to perform certain craft tasks.”

47 Fed. Reg. at 23,662. Perhaps as a result, federal

wages today, rather than being below those in the private

sector, are in some cases far above. See GENERAL AC-

COUNTING OFFICE, THE DAVIS-BACON AcT SHOULD BE

38a

REPEALED 71 (1979) (on twelve projects where wage de-

terminations were higher than GAO-determined pre-

vailing rate, average difference was 36.8%). No one has

attacked this basic finding. The fact that the past

practice has not been entirely successful tends to predis-

pose a reviewing court to allow the Secretary to try a

different scheme that, while more difficult to enforce,

might on balance result in a closer approximation of the

prevailing wage. See American Trucking Associations,

387 U.S. at 416 (regulatory agencies are supposed “to

adapt their rules and practices to the Nation’s needs in a

volatile, changing economy”).

The Secretary’s definition here is not clearly unreason-

able or on its face impossible to enforce. First, the dis-

tinction between supervised and supervising personnel

is a common one in the labor field. It is thus not a com-

pletely untested distinction nor one that has proven impos-

sible to draw.

Second, the new regulation, as modified by the re

quirement that the classification prevail in an area be-

fore it may be used, is an entirely logical response to the

problem of federal construction practice not reflecting the

widespread, but not universal, practice of using helpers.

The new regulation would lower the current federal

wages for the most part in those nonunion areas .where

they are significantly above the wages paid in the area.

See, e.g., A. THIEBLOT, supra p. 24, at 94, reprinted in

Record at 3948 (effect of 35-day suspension of Act in

1971 was “negligible” in highly unionized areas, but

“often substantial” in nonunion areas). In the union

areas of the country where helpers are little used, they

would not be allowed on federal projects. Thus, the new

regulation would be narrowly aimed at correcting the

federal practice in areas where it has not worked well,

and would not result in a wholesale reduction in journey-

man wages.

Third, but by no means least important, the Secretary

has increased the likelihood that gross violations will be

39a

caught, or at least that evasion will not get too far out of

line, by putting the forty-percent cap on the use of

helpers. While it might be desirable for the cap to re-

flect the extent of use in the area, rather than provide

a single nationwide cutoff, the existence of some cap at

least increases our confidence that the Secretary has con-

sidered the enforcement problems of the new definition

and responded to them. See 46 Fed. Reg. at 41,456 (pro-

posed 1:5 helpers-to-journeyman ratio was intended “to

protect against possible abuse”). All things considered,

the unions have not shown the Secretary’s choice of regu-

latory schemes to be arbitrary or capricious.

E. Allowing Submission of Summary Statement of

Compliance with Wage Laws

The Secretary’s present regulations require covered

federal contractors and subcontractors to submit weekly

a copy of their payrolls, listing the name and address

of each laborer or mechanic, and his or her classification,

rate of pay, daily and weekly hours worked, deductions

made, and actual wages paid. 29 C.F.R. § 5.5(a) (3)

(1982). With the exception of a three-year hiatus from

1948 to 1951, the regulations have continuously required

the submission of such payrolls since 1935, immediately

after the Copeland Anti-Kickback Act was passed. See

Construction Regulations and Regulations Issued Pursu-

ant to So-Called “Kick-Back Statute” pt. II (1985), re-

printed in J.A. at 172, 178-79 [hereinafter cited as 1935

Kick-Back Regulations] ; 13 Fed. Reg. 524 (1948) (elim-

inating the provision) ; 16 Fed. Reg. 4430, 4481 (1951)

(reinstating the provision).

Initially the Copeland Act required a “sworn affidavit”

with respect to the wages paid, so the regulations required

1 We repeat that we have not been provided with a sig-

nificant discussion of the issues regarding the 40% cutoff and

therefore do not here pass on the propriety of it. See supra

note 7.

40a

that the payrolls be accompanied by an affidavit from the

employer swearing that “the attached pay roll [was]

... true and accurate” and that no unreported deductions

or rebates had been made. 1935 Kick-Back Regulations,

supra p. 39, pt. II, § 2, reprinted in J.A. at 178. In 1958,

in a law to improve government procurement opportuni-

ties for small business concerns, the Copeland Act was

amended to require a “statement” rather than a “sworn

affidavit” and to make false statements a criminal of-

fense. Act of Aug. 28, 1958, Pub. L. No. 85-800,

§12, 72 Stat. 967. The regulations thus now require

that the payroll be accompanied by a statement indicat-

ing that the payroll is correct and complete, that the wage

rates are not less than those determined by the Secretary,

and that the classifications for each laborer or mechanic

conform to the work done. 29 C.F.R. § 5.5(a) (3) (ii)

(1982) (contract provision); see id. $3.3 (regulatory

requirement).

The new regulation would eliminate the requirement

that payrolls be submitted, while maintaining the re-

quired weekly submission of a statement of compliance.

The statement would certify that the payrolls the em-

ployer is required by the regulations to maintain are

correct and complete, that each laborer or mechanic has

been paid the full wages earned without impermissible de-

duction or rebate, and that the wage rates paid are the

applicable ones for the classification of work performed.

47 Fed. Reg. at 23,669 (to be codified at 29 C.F.R.

§ 5.5(a) (3) (ii)); id. at 28,679 (to be codified at 29

C.F.R. § 3.3(b)).

The Secretary justified the change as a reduction in

unnecessary paperwork, since the submitted payrolls

are “infrequently used by many Federal agencies.” Jd. at

23,662. He estimated that the elimination of the require-

ment would save $100 million in compliance costs. Jd.

The unions disputed the cost savings involved, arguing

that the estimates ignored the enforcement benefits of the

payroll reporting requirement. Jd. In this court, the

4la

unions also cite Labor Department testimony that the

payrolls are typically reviewed at the beginning of each

project and spot-checked thereafter, with contractors that

have a history of violations receiving more thorough

checks. See Federal Contractors’ Reporting Requirements:

Hearing on S. 1681 Before the Subcomm. on Federal

Spending Practices and Open Government of the Senate

Comm. on Governmental Affairs, 96th Cong., 1st Sess.

18 (1979); see also id. at 147 (memorandum of HUD

Inspector General) (contractor is less likely to underpay

if he is required to submit weekly payroll reports). Since

we find the Secretary’s relaxation of the reporting re-

quirement to be contrary to a direct statutory command,

we need not reach the question of whether the payroll re-

porting requirement is, as the District Court found, “es-

sential to the achievement of the Act’s purposes” because

of the transient nature of much construction business,

543 F. Supp. at 1288-89; accord 553 F. Supp. at 354

(new regulation “would render the act largely un-

enforceable’’).

We think that when Congress directed the Secretary to‘

require contractors to “furnish weekly a sworn affidavit

with respect to the wages paid each employee during the

preceding week,” Copeland Anti-Kickback Act, ch. 482,

§ 2, 48 Stat. 948 (1934), it meant that the wages paid

each employee should be separately reported and sworn

to. Under the Secretary’s reading of the statute, the in-

tent of the reporting provision would be little more than

to add a further criminal penalty—that of perjury—to

the crime of underpaying one’s employees. We think the

reporting provision was intended to play, im addition, a

role in uncovering violations of the law. The most per-

suasive evidence of this is, of course, the word “each”

and the requirement that the submission be “weekly.”

If the provision were meant only to add perjury to the

criminal penalties provided by section 1 of the act, then

it would seem unnecessary to have the affidavit refer to

“each” employee since a statement as to all of them

42a

would presumably be untrue if any one was underpaid.

Under the Secretary’s reading, it would also seem to be

unnecessary to require a “weekly” submission, since

a blanket statement at the end of the contract term would

serve to criminalize any single breach during construc-

tion. Both of these provisions are most naturally read if

one attaches an investigatory purpose to the act, that

is, if the requirement was intended to aid in uncovering,

not merely punishing, violations. Only a requirement

that payrolls be submitted would help uncover violations,

either by exposing contractors who accurately reported

underpayments « » by simplifying the task of investigators

in spot-checking for violations or turning up unusual

patterns.

Further support for this reading is provided by the

initial phrase of the section in the original act, which

read, “To aid in the enforcement of the above section.”

The “above section,” section 1 of the act, made it a

criminal offense to induce an employee to give up any

part of the compensation to which he or she is entitled.

Section 2 would only really “aid in the enforcement”

of section 1’s criminal provision if it helped catch viola-

tors rather than if it merely added to the underlying

conduct a further penalty with apparently the same or

greater elements of proof.

The legislative history of the act does not contradict,

and to a large extent supports, this reading of the statutory

language. The affidavit provision was not mentioned in

the committee reports or on the floor of the House, where

there was no debate on the act at all. There was also no

debate in the Senate, except that Senator Copeland briefly

introduced the bill, stating in part,

It is the purpose of the bill to have the Secretary

. . » require that an affidavit be made as to the pay

roll each week so that we may have some way of

reaching those who may be guilty of this practice

{of requiring kickbacks from employees].

43a

78 ConG. Rec. 7401 (1934). While the words “as to”

slightly support the Secretary’s view that only a gen-

eralized affidavit about the wages paid was required,

the mention of the weekly “pay roll” tends to support

the unions’ view that a sworn copy of the payroll was

required. Further support for the latter position is pro-

vided by the stated purpose of providing “some way of

reaching those who may be guilty of this practice.” The

word “reaching” must have meant “uncovering,” support-

ing an inference that the provision had an investigatory

purpose, because if the aim was merely further to crim-

inalize a failure to pay, the penalties of section 1 would

already provide ‘some way of reaching” violators.

Moreover, when the idea of requiring weekly reporting

was advanced in the hearings that led to the enactment

of the provision, the witnesses making the suggestion

were crystal clear that the payrolls themselves should he

submitted in order to allow them to be “watch[ed] ...

constantly.” 1 Investigation of So-called “Rackets”:

Hearings Before a Subcomm. of the Senate Comm. on

Commerce Pursuant to S. Res. 74, 738d Cong., 2d Sess.

791 (1933); accord id. at 816 (to “follow up” on pre-

determination of wages). Furthermore, in response to

one witness’s mention of a case in which a contractor

made his subcontractor “present his pay roll,” Senator

Copeland indicated that he thought it a “very practical

suggestion that ever. »ay roll should be certified and

sworn to,” clearly ii<>iying that the Senator expected

that the payrolls themselves would be filed. Jd. at 7938

(emphasis added). Similarly, the 1935 report of the com-

mittee investigating the operation of the Davis-Bacon

Act, on which Senator Copeland served, mentioned the

then new regulations requiring submission of payrolls,

which the report said were issued “[p]ursuant to the

provisions of the Copeland Act” and which it said would

“enable[] a thorough check of. the pay rolls.” S. REp.

No. 332, supra p. 4, pt. 2, at 5.

44a

There is no indication that the subsequent amendments

of the Copeland Act were intended to alter this original

intent. See Act of Aug. 28, 1958, Pub. L. No. 85-800,

§12, 72 Stat. 967 (replacing “sworn affidavit” with

“statement”); Act of May 24, 1949, ch. 189, § 134, 63

Stat. 108 (deleting reference to section 1 of the act).

In fact, when the law was amended in 1958 to require

only a “statement” instead of a “sworn affidavit,” the

Senate committee report stated that the act required

the filing of “payroll information.” S. Rep. No. 2201,

85th Cong., 2d Sess. 2, 9 (1958); see also id. at 16 (re-

printing National Advisory Committee for Aeronautics

letter approving the change in “the filing of payroll in-

formation” so that only “a weekly statement of wages

paid” would be required).

We think the Copeland Act clearly contemplated that

the statement required t. be submitted would provide

some amount of wages paid to each employee each week.

We do not say that the actual payrolls themselves, com-

plete with their records of deductions and taxes withheld,

must be required to be submitted. But we do think that

the statement required by the act must contain at least

individualized wage information for each covered em-

ployee.

III

We affirm the District Court as to the Secretary’s

elimination of the thirty-percent rule, the provision allow-

ing use of helpers if that classification is “identifiable”

in the area, and the provision allowing submission of a

statement certifying compliance with wage laws. We re-

verse as to the provision excluding urban counties from

certain rural wage determinations (and vice versa), the

provision excluding prior Davis-Bacon Act projects from

the wage calculations under the Act, and the expanded

definition of a helper’s duties.

It is 80 ordered.

45a

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

September Term, 1982

No. 83-1118

BUILDING & CONSTRUCTION TRADES’ DEPARTMENT,

AFL-CIO, et al.

Vv.

RAYMOND J. DONOVAN, SECRETARY OF LABOR, et al.,

Appellants

And Consolidated Case No. 83-1157

[Filed Jul. 5, 1983]

ORDER

It is ORDERED, sua sponte, that the Clerk shall with-

hold issance of the mandate herein until seven days afte

disposition of any timely petition for rehearing. See

Local Rule 14, as amended on November 30, 1981 and

June 15, 1982. This instruction to the Clerk is without

prejudice to the right of any party at any time to move

for expedited issuance of the mandate for good cause

shown.

For the Court

GEORGE A. FISHER

Clerk

46a

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

September Term, 1982

Civil Action No. 82-01631

No. 83-1118

BUILDING & CONSTRUCTION TRADES’ DEPARTMENT,

AFL-CIO, et al.,

Vv.

RAYMOND J. DONOVAN, SECRETARY OF LABOR, et al.,

Appellants

Appellees

And Consolidated Case No. 83-1157

[Filed Sep. 16, 1983]

Before: Edwards, Circuit Judge, McGowan and Mac-

Kinnon, Senior Circuit Judges

ORDER

On consideration of the Petition for Rehearing of

Building & Construction Trades’ Department, AFL-CIO,

filed August 19, 1983, it is

ORDERED by the Court that the aforesaid Petition

is denied.

Per Curiam

For the Court:

GEORGE A. FISHER

Clerk

By: /s/ Robert A. Bonner

ROBERT A. BONNER

Chief Deputy Clerk

47a

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

September Term, 1983

Civil Action No. 82-10631

No. 83-1118

BUILDING & CONSTRUCTION TRADES’ DEPARTMENT,

AFL-CIO, et ai.,

Vv.

RAYMOND J. DONOVAN, SECRETARY OF LABOR, et al.,

Appellants

Appellees

And Consolidated Case No. 83-1157

[Filed Sep. 16, 1983)

Before: Robinson, Chief Judge; Wright, Tamm, Wilkey,

Wald, Mikva, Edwards, Ginsburg, Bork and

Scalia, Circuit Judges, and McGowan and Mac-

Kinnon, Senior Circuit Judges

ORDER

The Suggestion for Rehearing en banc of The Building

& Construction Trades’ Department, AFL-CIO, filed Au-

gust 19, 1983, has been circulated to the full Court and

no member has requested the taking of a vote thereon.

On consideration of the foregoing, it is

ORDERED by the Court en banc that the aforesaid

Suggestion is denied.

Per Curiam

For the Court:

GEORGE A. FISHER

Clerk

By: /s/ Robert A. Bonner

ROBERT A. BONNER

Chief Deputy Clerk

48a

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

September Term, 1983

No. 83-1118

BUILDING & CONSTRUCTION TRADES’ DEPARTMENT,

AFL-CIO, et al.

Vv.

RAYMOND J. DONOVAN, SECRETARY OF LABOR, et ai.,

Appellants

And Consolidated Case No. 83-1157

| Filed Oct. 4, 1983)

Before: Edwards, Circuit Judge, McGowan and Mac-

Kinnon, Senior Circuit Judges

ORDER

On consideration of the motion of Appellees-Cross Ap-

pellants Building and Construction Trades’ Department,

AFL-CIO, for Stay of Mandate and of the opposition

thereof, it is

ORDERED by the Court that the motion is partially

granted and the Clerk is directed to withhold issuance of

this Court’s mandate through October 26, 1983.

Per Curiam

For the Court:

GEORGE A. FISHER

Clerk

By: /s/ Robert A. Bonner

ROBERT A. BONNER

Chief Deputy Clerk

49a

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 82-1631

BUILDING AND CONSTRUCTION TRADES DEPARTMENT,

AFL-CIO, et al.,

Plaintiffs,

Vv.

RAYMOND J. DONOVAN, et al.,

Defendants.

Filed Jul. 22, 1982

MEMORANDUM ORDER

This is a motion for a preliminary injunction’ which

seeks to restrain the enforcement of certain regulations

issued in implementation of the Davis-Bacon Act, 40

U.S.C. §276a et seg., and the Copeland Anti-Kickback

Act, 40 U.S.C. § 276c. The regulations are to take effect

on July 27, 1982.*

1 Plaintiffs are the Building and Construction Trades Department,

AFL-CIO; the American Federation of Labor and Congress of In-

dustrial Organizations, and several other labor unions. Raymond

J. Donovan, Secretary of Labor; and Robert B. Collyer, Deputy

Secretary of Labor for Employment Standards; and William M.

Otter, Administrator of the Wage and Hour Division, are defend-

ants herein.

2 The action was filed on June 11, 1982. On July 9, 1982, plain-

tiffs sought a temporary restraining order, but that application

was not pressed in view of the Court’s commitment to hear the

preliminary injunction motion and cross motions for summary

judgment prior to July 27, 1982. Briefs were filed on July 15

and 19, and a hearing was held on July 20. Because of the short

deadline, the Court is deciding today only the preliminary injunc-

tion issues; the summary judgment motions are under advisement.

50a

I

The Davis-Bacon Act was enacted in 1931 and sub

stantially amended to achieve its present format in 1935.

Its principal purpose is to protect employees on federal

projects by guaranteeing to them a minimum wage based

on local prevailing wage rates. The Copeland Anti-

Kickback Act was enacted in 1934, its purpose being to

deter kickback practices by contractors on public con-

struction projects. The issues here revolve around regu-

lations issued after appropriate rule-making*® by the

Secretary of Labor in May 1982 which depart sig-

nificantly in five respects from the regulations or in-

terpretations which have been in effect since the early

1930s. The plaintiffs challenge the legality of the regu-

lations in all of these respects.

On this motion for preliminary injunction the Court

must consider whether plaintiffs have demonstrated (1)

a strong showing that they are likely to prevail on the

merits of their claims; (2) that without an injunction

they will be irreparably injured; (3) that issuance of the

injunction will not substantially harm other parties in-

terested in the proceedings; and (4) that the public

interest favors the grant of an injunction. Washington

Metropolitan Area Transit Commission v. Holiday Tours,

Inc., 559 F.2d 841, 843 (D.C. Cir. 1977).

II

In the view of the Court, plaintiffs have demonstrated

a substantial likelihood that they will prevail on the

merits. That conclusion is based in part on the Court’s

review of the language of the statute and its legislative

history (which are discussed in this part of the opinion)

and on the long and consistent administrative practice

prior to the issuance of the new regulations (Part III

infra).

8 There are no claims of procedural irregularity.

bla

1. The Davis-Bacon Act establishes that the Secretary

shall issue wage determinations based on the “wages

. . » prevailing for the corresponding classes of laborers

and mechanics” in the area. The parties are in disagree-

ment on the question of whether this language permits the

Secretary to issue regulations which would permit a sub-

stantial increase in the issuance of wage rates for semi-

skilled “helpers.” The new regulation provides for such

increase (1) by defining “helpers” as a class of ‘“me-

.uanics or laborers”; (2) by eliminating the requirement

that the helper classification be prevailing in an area

as long as it is “identifiable”; (3) by allowing the use of

helpers for forty percent of the total number of workers

in a particular classification and by permitting even that

limit to be exceeded under certain circumstances; and (4)

by adding helper classifications to a wage determination

even though they were not included at the time the

contract was awarded. In the opinion of the Court, these

changes are not consistent with the statute.

At the time of enactment of the Davis-Bacon Act,

Congress was acutely conscious of efforts by some em-

ployers to classify workers as “helpers” in order to

avoid paying the skilled laborers’ wage.* The Senate

Committee report noted that wage standards had

largely broken down by intermediate classifications

of labor and failure to retain the strict lines of de-

marcation intended to be drawn and maintained be-

tween skilled and unskilled labor. The whole tend-

ency has been for wages of the skilled group to

descend toward the level of the unskilled group, this

by reason of intermediate classification devices.

The report concluded by recommending that construction

contracts contain a provision stating that the minimum

(Bek ten 1932 House Hearings at 109-10; 1934 Hearings before

a subcommittee of the Senate Committee on Education and Labor,

pursuant to S. Res. 228, 73rd Cong., 2d Sess. (1934), pp. 414, 428,

569, 530-31.

52a

wages to be paid “various classes of laborers and me-

chanics” shall be based on wages prevailing “for the cor-

responding classes of laborers and mechanics,” the lan-

guage ultimately adopted in 1935. See S. Rep. No. 332,

74th Cong., lst Sess. (1935), Part 3, at pp. 13, 15-17.

The new regulations will permit precisely that which

Congress intended to halt in 1935. The concept of

“classes of laborers or mechanics” was and is central

to the statutory scheme. Under existing and long-

established industry and administrative practice, a

“class” of workers is one that has been historically recog-

nized as such and whose members perform well-defined

tasks. Helpers have therefore been recognized as a class

only when their use has been prevailing in an area and

they have formed a distinguishable group performing

discrete tasks.

Under the new regulations, helpers not only are not

defined in traditional terms, but they may perform any

task throughout the entire construction field: they are

“general helpers.” As a consequence, such individuals

would be allowed, at the discretion of the contractors, to

perform the tasks of laborers, or journeyman mechanics,

and of laborers and mechanics on a cross-craft, muliti-

trade basis. Obviously, if contractors could thus assign

a helper to perform the tasks of any and all classes of

laborers and mechanics and they could do so at lesser

pay, they will do just that, and the requirement that

wages be based on “corresponding classes” will effectively

be read out of the law.® As the Wage Appeals Board

5 Former Secretary of Labor John T. Dunlop states in an affidavit

submitted to the Court that

there is no practice of ‘jack-of-all-trades’ helpers much less

53a

said in Fry Brothers Corp., 123 WAB No. 76-6 (June

14, 1977), at pp. 15-16:

If a construction contractor who is not bound by the

classifications of work at which the majority of em-

ployees in the area are working is free to classify or

reclassify, grade or subgrade traditional craft work

as he wishes, sitch a contractor can, with respect to

wage rates, take almost any job away from the

group of contractors and the employees who work for

them who have established the locality wage stand-

ard. There will be little left to the Davis-Bacon Act.

Moreover, under existing administrative practice, a

heiper classification is recognized only if it is “prevail-

ing” in a particular area; under the new regulations,

the use of helpers need only be “identifiable” to be

recognized. Yet the statute itself refers to “wages...

prevailing for . . . classes,” not to wages identified for

classes." The effect of this change will be that when

there is a single “helper” or a small group of helpers in

a town or a metropolitan area, helpers may be employed

in substitution of traditional craft workers throughout

that area in all aspects of construction work. In that

respect, again, the new regulations will depart both

from prior practice and from the central purpose of the

Act.

For these reasons, it is unlikely that, when the merits

are reached, this regulation can be allowed to stand.’

*If there is no prevailing practice in the locality to employ

helpers, they may not be used for Davis-Bacon Act purposes.

7The Secretary defends the regulation in part on the ground

that it will facilitate non-formal training of women, minorities,

and young workers. Memorandum, p. 38. In fact, it will assign

members of such groups to the lowest classification of workers,

and it is likely keep them there on a permanent or long-term basis.

Much of the Secretary’s other explanations for the new regulation

revolve around cost savings, but there are also references to his

belief that the use of helpers will increase efficiency and productivity

54a

2. The 1935 amendments to the Act direct the Secre-

tary, in his ascertainment of the prevailing wage, to de-

termine wages for “projects of a character similar to

contract work.” 40 U.S.C. §276(a). The present regu-

lation, which became effective contemporaneously with

the 1935 statutory enactment, permits the Secretary,

in performing this function, to include the wages paid

in federal construction projects. The regulation issued

two months ago explicitly mandates to the contrary that

in compiling wage rate data the Secretary “will not

use data from Federal or federally assisted projects”

unless wage data from the private sector are insufficient

for the Secretary’s purpose.* In the opinion of the Court,

the existing regulation far more faithfully reflects the

intent of Congress than that which has just been issued.

In the first place, the statute expressly mandates the

Secretary to consider “projects of a character similar’;

not “private projects of a character similar.” If a limi-

tation or qualification is to be read into the statute it

would have to be on the basis of extrinsic aids to con-

struction, such as legislative history or administrative

practice. But these aids support the plain meaning of the

statute; they do not contradict it.

The congressional commitee reports published at the

time of the original enactment of the Davis-Bacon Act

in 1931 indicated that only “wages established by pri-

vate industry” could be regarded as constituting the ap-

propriate standard for the ascertainment of the prevail-

ing wage. However, a serious problem arose with this

standard when, during the Depression, very little private

construction was going on. Accordingly, notwithstanding

the congressional mandate, both Secretary Doak and

Secretary Perkins considered also data from publicly-

and to the fact that helpers are widely used in private industry.

None of these reasons satisfactorily explains the departure from

prior practice. See Part III infra.

® Certain types of projects are also exempt.

55a

financed projects in determining wage rates for Davis-

Bacon Act purposes, and this administrative practice was

duly drawn to the attention of the Congress when it con-

sidered amendments in 1934.

The amendments were enacted in 1935, and the lan-

guag? “work of a similar nature” was changed to “proj-

ect of character similar to the contract work”—a change

which directed an alteration of the focus from similar-

ity of tasks to similarity of projects. Further, notwith-

standing the departmental practice after 1931, neither

the committee reports nor the legislative debates this

time contained any language which could be read as re-

stricting the universe of projects to those of a private

nature.

It appears to the Court that this history does not sup-

port the conclusion that, contrary to the language of the

statute, Congress intended to limit, and did limit, the Sec-

retary to private construction in making his wage de-

terminations. It follows that this aspect of the regulation

is unauthorized by law.*

3. The next point of dispute between the parties con-

cerns the wage rates to be used where there has been

no significant construction on the basis of which a pre-

vailing wage rate could be established, especially with

respect to rural areas. The Davis-Bacon Act provides

that the geographic reference point for prevailing wage

determinations is the “city, town, village, or other civil

subdivision of the state in which the work is to be per-

* The Secretary seeks to justify his change in the regulations

on the basis of the argument that the inclusion of data from govern-

ment construction projects improperly raises the level of the pre-

vailing wage. However, as the Supreme Court has pointed out,

“the Davis-Bacon Act ‘was not enacted to benefit contractors, but

rather to protect their employees from substandard earnings by

fixing a floor under wages on Government projects.’” Walsh v.

Schlecht, 429 U.S. 401, 411 (1977).

56a

formed... .” 40 U.S.C. § 276a(a). Long-standing reg-

ulations provide that

If there has been no similar construction within that

area in the past year, wage rates paid on the nearest

similar construction may be considered."”

The regulation just issued contains similar language

but adds a proviso to the effect that

. . « projects in metropolitan counties may not be

used as a source of data for wage determination for

a rural county.

The legislative history of the Act shows that the

drafters concluded that, as Congressman Connery, chair-

man of the House Committee on Labor in 1931, put it

when asked about the establishment of prevailing wage

rates with respect to small towns, “(t]he only practical

way the Committee found was that if you had a small

town between two large cities they would take the pre-

vailing wage scale of those two cities.” 75 Cong. Rec.

12376-77. See also, the debate reported in 75 Cong. Rec.

12365-66."

The Secretary correctly points, on the other hand,

that concern had been expressed in Congress about the

indiscriminate importation of metropolitan wages to up-

set rural wage scales. Legislative History of the Act

Amending the Prevailing Wage Section of the Davis-

Bacon Act, House Committee on Education and Labor,

10 Another regulation (sec. 7 of regulation 503) refers to use

of data from the “nearest large city’”’ when there has been no con-

struction of a similar character in recent years. These regulations

appear to have been consistently interpreted as permitting the use

of wage data from nearby metropolitan centers for the establish-

ment of the prevailing wage for a rural area.

11 And see, 25 U.S.C. § 450e; 33 U.S.C. § 1872; and 12 U.S.C.

§ 1749a(f) where the Congress, unlike here, limited wage applica-

tions to “similar construction in the immediate locality” (emphasis

added).

57a

88th Cong., 2d Sess. at 24 (1964); see also, Senate Re-

port No. 332, 74th Cong., Ist Sess. pp. 10, 13 (1935).*

It is fair to say that the legislative history is mixed,

and the Court concludes that without the consideration

of the factor of administrative practice (see Part III

injra), the proper meaning of the statute on this aspect

of the case would not be free from doubt.

4. Section 1 of the Davis-Bacon Act provides that

every covered federal construction contract shall contain

a provision stating the minimum wages to be paid var-

ious classes of laborers and mechanics that “will be de-

termined by the Secretary of Labor to be prevailing”

for corresponding classes of laborers and mechanics. Ex-

isting regulations provide that "*

in the event that there is not a majority paid at the

same rate, then the [prevailing wage rate in the

area shall be that] paid to the greater number:

Provided, such greater number constitutes 30 percent

of those employed.

The new regulation * specifies that the prevailing wage

shall be

the wage paid to the majority (more than 50%)

[or] if the same wage is not paid to a majority

. . . the ‘prevailing wage’ shall be the average of

the wages paid, weighted by the total employed in

the classification.

12 However, the Secretary’s reference (Memorandum, p. 23) toa

statement by Congressman Bacon, in which he warned against the

importation of “cheap bootleg labor” into a community, is ill-

advised, for it does not demonstrate that Congress, which was

basically interested in protecting workers against substandard

wages, objected to the use of metropolitan wages in nearby small

towns.

18 See 29 C.F.R. § 1.2(a).

1447 Fed. Reg. 23,652 (1982).

58a

The Secretary’s position with respect to this provision,

too, is not without support.

It has consistently been held that the Act itself does

not establish any definition of “prevailing wage,” this

being the Secretary’s responsibility."* This principle

would seem to be sufficient to allow the Secretary to select

a standard other than the thirty percent rule, provided

it is a reasonable one.

Plaintiffs rely to the contrary primarily upon a dic-

tionary definition of “prevailing” as meaning more fre-

quent, as distinguished from being a synonym for “ma-

jority.” Even if one were to consider this to be the true

test of the meaning of the statute, it does not exclude the

possibility that the Secretary, in the exercise of his dis-

cretion and on the basis of his expertise, may choose a

fifty percent standard as being prevailing.

Thus, it would appear that if this issue came up on

a blank slate, the new regulation would be upheld. How-

ever, the fact is that the Secretary has given no rea-

soned explanation for the new regulation,’* which departs

from a rule adopted by the Department of Labor on the

very day the 1935 Act became effective. Thus, for the

reasons discussed below, it is likely that on this basis

the plaintiffs will be able to prevail on this aspect of the

case when the Court reaches the merits.

5. The Copeland Act requires the Secretary to issue

regulations for federal contractors, including regulations

15 However, as noted in note 27 infra, the Secretary is given

broad, basically unreviewable discretion primarily with respect to

individual wage determinations, not with regard to rule-making

decisions.

16The Secretary’s reasons for adopting a new regulation—

primarily that the thirty percent rule gives undue weight to collec-

tive bargaining and that it is inflationary—are not in the least

persuasive, for they bear no relationship to the purposes of the

statute.

59a

requiring them to “furnish weekly a statement with re-.

spect to the wages paid each employee during the pre-

ceding week.” 40 U.S.C. § 276c. The question in dispute

between the parties is whether the statute requires the

actual submission of the contractors’ weekly payroll—

as the current regulation does '"—or whether it sanctions

the new regulation which requires only the submission of

a statement of compliance in which the contractor cer-

tifies that he has paid the required wages to all of his

employees.'*

The Secretary rests essentially on the proposition that

the statute makes no mention of payrolls or payroll rec-

ords, and on the statement of Senator Copeland, sponsor

of the law, to the effect that only affidavits “about” the

payroll are required. Memorandum, p. 32. But these ar-

guments fail to address the central fact that the statute

requires contractors to submit to the Secretary each week

information as the wages paid to “each employee” during

the preceding week. A general affidavit covering the

wages paid to all the employees during the preceding

week obviously does not comply with that mandate.”

Moreover, it appears, contrary to the Secretary’s posi-

tion, that actual payroll information is essential to the

achievement of the Act’s purposes.*” Unless precise rec-

17 Section 5.5(a) (3), 3.3(b), and 3.4.

1847 Fed. Reg. 23668, to be codified at 29 C.F.R. §55(a). The

regulation also provides that the contractor shall submit the payroll

records upon request of the Secretary.

1° The legislative history likewise supports the payroll submis-

sion requirement. See Senate Report 332, 74th Cong., Ist Sess. 5-6

(1935); Hearings Before the Subcommittee of the Committee on

Commerce Pursuant to S. Rep. 74, 73rd Cong., 2d Sess. (1933)

pp. 791-97, 816-17; 1934 Hearings of Senate Committee on Educa-

tion and Labor, pp. 192-93. Indeed, an effort in 1979 to eliminate

the requirement of payroll submission failed of enactment.

20 Both the Department of Labor and other departments have

publicly so stated in the recent past. See Hearings before the

60a

ords are submitted to the Department on a weekly basis,

they will in many instances never become available, in-

asmuch as—largely because of the transient nature of

much construction business *\—many contractors and sub-

contractors maintain neither offices nor permanent rec-

ords. Indeed, even if those conditions were absent, gen-

eralized statements that there has been compliance would

not give enforcement personnel even the beginnings of a

basis for further investigation. In short, it appears that

enforcement of the Act would be in serious jeopardy if

the new regulations were to be substituted for the present

practice.”

For these reasons, the Court concludes that, on the

basis of the statutory language and its purpose alone,

plaintiffs have demonstrated a strong likelihood of suc-

cess with respect to the Copeland Act regulations.

III

As seen in the necessary brief survey supra, it is clear,

at a minimum, that the language and history of the two

laws lend at least as much support to plaintiffs’ position

as to the Secretary’s, and that with respect to several of

the provisions only the construction advanced by the

former is consistent with the statute. With the case in

that posture, the Court may look appropriately for guid-

Senate Committee on Labor and Human Resources, S. 1319, 96th

Cong., Ist Sess., pp. 277-79 (July 17-19, 1979) ; Hearings on S. 3061,:

before the Subcommittee on Federal Spending Practices and Open

Government of the Senate Committee on Government Affairs, 96th

Cong., 1st Sess., p. 147 (1979).

21 Often, workers are hired on a daily basis and they are paid

in cash.

22 Present practice does not require contractors to generate

records solely for purposes of the Copeland Act. A contractor will

be in full compliance simply by providing duplicates of their

payroll records which he must maintain in any event to comply

with the Fair Labor Standards Act. See 29 C.F.R. § 5.16.

6la

ance to administrative interpretation and practice. That

interpretation and that practice reveal the following.

Administrative construction that was contemporaneous

with the adoption of the Davis-Bacon Act conclusively

supports the views espoused here by the plaintiffs in

every significant respect.** Those who knew best what

Congress intended—the administrators who issued inter-

pretative regulations within a short period after the en-

actment of the statute, sometimes within days—fully

support by their actions the arguments made by the

plaintiffs regarding congressional intent and the infer-

ences they ask the Court to draw with respect to the

meaning of these laws. On that basis alone, it would be

difficult to escape the conclusion that the statutes should

be so interpreted. See, e.g., FTC v. Mandel Bros., 359

U.S. 385, 391 (1959).

That is not all. For forty-seven years thereafter,

through the administrations of eight Presidents ™ and

fifteen Secretaries of Labor * of many political and ideo-

logical persuasions, those interpretations and those regu-

lations stood without substantive alteration. During that

period none of the administrators effected the kinds of

fundamental changes that are brought about by the reg-

ulations adopted two months ago; instead, the various

Secretaries of Labor continued to interpret and enforce

the laws precisely in accordance with the original under-

standing. Nor can this stability and consistency in con-

struction by those charged with the laws’ enforcement be

attributed to inattention, oversight, or neglect (as is

28 The Secretary has made no substantial effort to contest that

conclusion.

* Presidents Roosevelt, Truman, Eisenhower, Kennedy, Johnson,

Nixon, Ford, and Carter.

25 Secretaries Doak, Perkins, Schwellenbach, Moses, Tobin,

Durkin, Mitchell, Goldberg, Wirtz, Shultz, Hodgson, Brennan,

Dunlop, Usery, and Marshall.

62a

sometimes true when relatively obscure laws or regula-

tions are involved). The Davis-Bacon Act is and always

has been a well-known law, affecting millions of em-

ployers and wage-earners throughout the United States,

and it has frequently been the subject of political and

other controversy.

Such consistent, unwavering administrative construc-

tion must be accorded very substantial weight by the

Court. See, e.g., Norwegian Nitrogen Co. v. United

States, 288 U.S. 294 (1933) ; United States v. Leslie Salt

Co., 350 U.S. 383, 396 (1956); Andrus v. Shell Oil Co.,

446 U.S. 657, 673 n. 12 (1980). Justice Cardozo’s state-

ment in Norwegian Nitrogen is particularly apt:

... administrative practice, consistent and generally

unchallenged, will not be overturned except for very

cogent reasons if the scope of the command is in-

definite and doubtful .... The practice has peculiar

weight when it involves a contemporaneous construc-

tion by the men charged with the responsibility of

setting its machinery in motion, of making the parts

work efficiently and smoothly while they are yet un-

tried and new.

288 U.S. at 315.

The Secretary’s reply is that an agency is not bound

to adhere to prior erroneous practice for all time but

may make adjustments and changes in the light of its

expertise and experience. That principle is unexception-

able in the abstract, but it is also more directly applicable

to the exercise of broad public interest-type discretion

than it is to actions which are essentially exercises in

statutory construction.** Moreover, the Secretary’s prin-

26 For that reason, the decisions on which the Secretary relies

are not apposite here. In New Castle v. CAB, 371 F.2d 733 (D.C.

Cir. 1966), the court was dealing with a statute which left to the

agency broad authority to regulate in the public interest. Under

such circumstances, indicated the court, the agency is not precluded

63a

ciple does not seem to have been successfully pleaded in

the past to defeat interpretations and administrative

practices as open and consistent as those revealed by this

record.*” See Baltimore & Annapolis R. Co. v. WMATA,

642 F.2d 1365 (D.C. Cir. 1980), where the court referred

to the fact that the agency attempted to overturn the

position taken in “an order issued only a few years after

an enactment of the [statute] and allowed to stand with-

out challenge or contradiction for more than twelve

years.” Under these circumstances, said the court, it

would not be justified in merely deferring to the agency’s

conclusion but would make an independent judgment, ex-

amining the agency’s conclusions with “more exacting

vigilance” than would otherwise be employed. 642 F.2d

at 1371.

In any event, when an agency abruptly changes a long-

standing administrative position, regardless of the con-

text, it may be expected at a minimum*to show that the

earlier understanding of the statute was wrong or that

from effecting changes in furtherance of a new philosophy. Office

of Communications of United Church of Christ v. FCC, 590 F.2d

1062 (D.C. Cir. 1978), which is the other case cited, is to the same

effect, the court using such language as “open-ended provisions”

and “discretion to strike a balance.” 590 F.2d at 1068. Here the

Secretary does not claim to be acting on the basis of a new

philosophy; he asserts that he is merely implementing the congres-

sional purpose on the basis of improved experience and expertise.

27 Likewise inapplicable is the line of cases cited by the Secre-

tary which exempts wage determinations made by the Department

of Labor from judicial review. See, e.g., United States v. Bing-

hamton Construction Co., Inc., 347 U.S. 171 (1954); Universities

Research Association, Inc. Vv. Coutou, supra, 450 U.S. 754 (1981).

These decisions all concern specific, individual wage determinations,

not broad regulatory changes. Indeed, a number of decisions hold

that general rules are not immune from judicial scrutiny. See Com-

monwealth of Virginia v. Marshall, 599 F.2d 588, 592 (4th Cir.

1980); North Georgia Bldg. & Const. Trades v. Goldschmidt, 621

F.2d 697 (5th Cir. 1980). ;

64a

experience has proved it to be defective.** As indicated

supra, the Secretary has done neither; his primary re-

liance throughout has been on cost and cost savings—

matters neither of novel experience nor of special ex-

pertise, but well known to and considered by the Con-

gress as early as 1931.

The basic purpose of the Davis-Bacon Act is to pro-

tect the wages of construction workers even if the ef-

fect is to increase the costs of construction to the fed-

eral government. In 1931 and 1935—notwithstanding

such opposition as that of President Hoover who cited a

“great increase in expense to the taxpayer” as one of his

principal grounds “—the wage-floor philosophy prevailed

over that which regarded low cost to the government as

the prime consideration. The Congress enacted the stat-

ute which embodies that philosophy; it later further

strengthened that law; and it never repealed, modified, or

weakened it in any way.

It is not for the Court to judge whether the basic

policy decision to prefer wage floors over expense to the

government was or is wise. More to the point, it is not

for the Secretary of Labor or his subordinates to make

that judgment. Under our constitutional system, policy

decisions are not made by government administrators;

they are made by the Congress. In this instance Con-

gress made its decision, first in 1935 by the enactment

of the Davis-Bacon Act, and then again in the forty-

seven years since that time by ‘the failure and refusal

of succeeding Congresses either to change the law or to

suggest that in all these years it had been improperly

interpreted and applied.

28 See Greater Boston Television Corporation v. FCC, 444 F.2d

841 (D.C. Cir. 1970) ; Columbia Broadcasting System, Inc. v. FCC,

454 F.2d 1018, 1026 (D.C. Cir. 1971).

29 The Legislative History of the Davis-Bacon Act, House Com-

mittee on Education and Labor, September 1962, p. 13.

65a

For these reasons, the Court finds that plaintiffs have

shown a strong likelihood of success on the merits.”

IV

The balance of interests and injuries likewise weighs

heavily in favor of plaintiffs.

Some 600,000 contracts subject to the Davis-Bacon

Act or related statutes appear to be in force at any one

time, and approximately $43 billion is spent annually for

construction work covered by these statutes. These con-

struction projects are governed by complicated sets of

procedures, including proposals, evaluations, reviews,

bids, and contracts clauses, with labor standards re-

quirements interwoven throughout.** It is obvious that

substantial confusion would result if contracts were bid

under the new regulations and these regulations were at

some future date declared to be invalid. This would

harm not only the employees whose wages would be re-

duced in the interim but also the employers who would be

confronted with an almost impenetrable maze of changes

and recomputations. The public would likewise be in-

jured, for it would hardly benefit from the disruption

of the contracting process that would inevitably follow

from a change in the status quo before the legality of

the regulations had been determined with finality.

There is no comparably urgent need for allowing the

regulations to become effective immediately. All con-

30 This does not mean that the*Court has concluded that every

one of the provisions at issue in this lawsuit will ultimately be

found to be unauthorized by the statute and hence invalid. Not-

withstanding the general infirmity stemming from the Secretary’s

departure from contemporaneous and consistent administrative

interpretation, it may be that, on the merits, it will be found that

the Secretary has sufficient latitude under the statute with respect

to one or more of the regulatory provisions to adopt his current

construction.

31 Plaintiffs have suggested that some fifty-eight substantive laws

enacted by the Congress include Davis-Bacon Act standards.

66a

cerned have lived under the old regulations and interpre-

tations for well over forty years. Two and one-half

years have passed since the effort to change the regula-

tions was begun. An additional period of delay while

the legality of the regulations is judicially determined

with finality cannot significantly harm either the govern-

ment or others.** The Secretary relies on an affidavit

from the Administrator of the Wage and Hour Division

in support of his claim of immediate and irreparable

harm. But this affidavit in the main demonstrates only

that internal administrative preparations have been

made for implementation of the new regulations *—not

that anything has been done that cannot easily be undone

or that cannot be used at a later date in the event the

regulations are subsequently declared to be valid.

The Secretary points to the cost to the government

from a delay in enforcement, the obvious premise being

that construction can be achieved more cheaply under the

new regulations than under the old. In response it may

be observed, once again, that this is a cost that is in-

herent in the policy decision Congress made in 1935 and

maintained for the past forty-seven years. Beyond that,

costs to the government are not the only ones to be

considered on a balance of the injuries and the equities.

Several categories of persons will suffer significant

injury if the new regulation is improvidently permitted

to take effect notwithstanding its apparent invalidity,

as follows. First, those now employed under construc-

82 For that reason, this case is unlike Metzenbaum v. Edwards,

510 F. Supp. 609 (D.D.C. 1981), where this Court refused to issue

a preliminary injunction against enforcement of President Reagan’s

oil decontrol order. That injunction was sought several weeks

after decontrol had already occurred and the industry had ad-

justed to its terms.

83 The affidavit is studded with phrases indicating that instruc-

tions, analyses, or memoranda “are being prepared [or] revised

[or] conducted... .”

67a

tion contracts governed by the current regulations will,

under the new regulations, be forced to accept lower

wages—a change for which they will have no legal avenue

of redress. Second, either journeymen craft employees

are likely to be replaced by helpers or they will be forced

to work at helper wages if they wish to work at all.

Third, union contractors who are parties to collective

bargaining agreements will be squeezed out of the pro-

curement process by contractors who are able to make

lower bids under the new regulations. Non of these

injuries is likely to be remediable in the event that it is

ultimately decided on the merits that the regulations are

invalid.

The Court concludes that, upon a balancing of the

harm to the plaintiffs, the defendants, and the public,

from either a denial or a grant of an injunction, and

taking into account the likelihood that plaintiffs will suc-

ceed on the merits, it is appropriate that a preliminary

injunction issue.

V

For the reasons stated, it is this 22nd day of July,

1982,

ORDERED That defendant Secretary of Labor Ray

Donovan and all officers, agents, and employees under his

direction and control be and they are hereby enjoined and

restrained from administering, enforcing, or giving any

force and effect to the regulations published in the Fed-

eral Register on May 28, 1982, implementing the Davis-

Bacon Act and its related statutes (47 Fed. Reg. 23644-

23676) to be codified as 29 C.F.R. §§ 1.2(a), 1.3, 1.7(b)

and (d); 29 C.F.R. $§ 5.2(n) (4), 5.5(a) (1) (ii) (A) and

(B), 5.5(a) (3) (ii) and (III), and 5.5(a) (4) (iv); and

29 C.F.R. §3.3(b)), pending final disposition of this

action.

/s/ Harold H. Greene

HAROLD H. GREENE

United States District Judge

68a

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 82-1631

BUILDING AND CONSTRUCTION TRADES DEPARTMENT,

AFL-CIO, et al.,

Plaintiffs, —

V.

RAYMOND J. DONOVAN, et al.,

Defendants.

Filed Dec. 23, 1982

MEMORANDUM

On July 22, 1982, the Court issued a preliminary in-

junction restraining the enforcement of certain regula-

tions which the Secretary of Labor had issued osten-

sibly in implementation of the Davis-Bacon Act, 40 U.S.C.

§ 276a et seg., and the Copeland Anti-Kickback Act, 40

U.S.C. § 2776c. The same matter is now before the Court

on the parties’' cross motions for summary judgment.

The order granting the preliminary injunction was

accompanied by a Memorandum which discusses the vari-

ous regulations and the issues uf this lawsuit at some

length and, except for certain specific matters, no useful

purposes would be served by plowing over the same ground

once again in similar or greater detail.

Briefly, the July 22 Memorandum expressed the Court’s

view that the statutory language and the legislative

history regarding the basis for the five types of regula-

1The Court permitted the Associated Builders and Contractors

to file briefs as amicus curiae in support of the position of the

Secretary of Labor.

69a

tions at issue was somewhat ambiguous, w:th language

and history supporting the Secretary’s interpretation

more strongly with respect to some of the regulations

and less strongly with respect to others. The Court ulti-

mately resolved the doubts for preliminary injunction

purposes in favor of the plaintiffs because each of the

regulations issued by the present Secretary of Labor is

wholly inconsistent with administrative interpretation

contemporaneous with the enactment of the statutes

about 1935 and consistent administrative practice since

then. See generally Norweigan Nitrogen Co. v. United

States, 288 U.S. 294 (1933). The Court will now simply

add the following to what was said on July 22, 1982.

First. Nothing substantially new has been adduced by

the parties or the amicus or found by the Court with

respect to three of the challenged regulations.

a. The Act directs the Secretary, in his ascertainment

of the prevailing wage, to determine wages for “proj-

ects of a character similar to contract work.” 40 U.S.C.

§ 276(a). As the Court previously pointed out, admin-

istrative practice from the early 1930s on has been to

consider both private and public projects in ascertaining

the appropriate standard for ascertaining the prevailing

wage. The present Secretary’s attempt to alter this con-

sistent practice* is based essentially on nothing more

than his policy difference with the preceding fifteen Sec-

retaries of Labor. That is not enough. See Memorandum

of July 22 at pp. 12-14.

b. The next point of dispute centers around the ques-

tion whether, in setting prevailing wage rates for rural

areas, the Secretary may consider the wages being paid

in nearby metropolitan areas. As the Court previously

indicated, the legislative history of this provision is

mixed, but here, too, the ambiguities are fully resolved

2 This consistent administrative practice was well known to the

Congress, but it was never overruled by that body.

70a

by contemporaneous and consistent administrative prac-

tice against the construction adopted by the present

Secretary.

ce. The Copeland Act requires the Secretary to issue

regulations for federal contractors which, inter alia,

require such contractors to “furnish weekly a statement

with respect to the wages paid each employee during the

preceding week.’ Secretaries of Labor have always con-

strued this provision to mean that copies of the actual

weekly payroll must be submitted. The regulations is-

sued by the present Secretary, however, would require

only a statement from the contractor that he had com-

plied with the Act. The new regulation suffers not only

from the same infirmity as the others referred to above

—that it is contrary to consistent, long-standing admin-

istrative practice—but it is also subject to the additional

criticism that it would render the Act largely unenforce-

able. See pp. 10-11 of the Memorandum of July 22,

1982.

Second. The Davis-Bacon Act provides that every

federal construction contract shall contain a provision to

the effect that the minimum wages being paid to vari-

ous classes of laborers and mechanics shall be those de-

termined by the Secretary “to be prevailing” for cor-

responding classes of laborers and mechanics. The exist-

ing regulations define “prevailing wage” as the wages

being paid to at least thirty percent of those so em-

ployed. The new regulations issued by the present Secre-

tary and temporarily enjoined by the Court would change

this standard to provide in essence that a wage shall be

deemed prevailing only if it is paid to a majority (more

than “fty percent) of a particular class.

The Act itself does not provide a definition of “pre-

vailing wage,” and it is abundantly clear that the de-

finitional task was entirely delegated to the Secretary.

There is nothing intrinsically appropriate or inappro-

7la

priate to the thirty percent rule or to any other figure

as representing the “prevailing wage.” Moreover, the

legislative history of the statute and its purposes do not

provide support for any particular figure. The statute

quite simply relies on the Secretary to give content from

time to time to the term “prevailing wage” in the exer-

cise of his discretion and his expertise. There is no in-

dication that Congress intended the first Secretary of

Labor following enactment of the law to define the defini-

tion of prevailing wage for all time. To the contrary,

contemporaneous and subsequent legislative materials

indicate that Congress was fully aware tht the definition

might or would be adjusted depending on existing con-

ditions. 74 Cong. Rec. 6516 (Feb. 28, 1931); 74 Cong.

Rec. 12365 (June 8, 1932) ; Hearings before Senate Com-

mittee on Labor and Human Resources on Military Con-

struction Authorization Act of 1980, 96th Cong., 1st

Sess. at 363 (1979).

In view of the background, which differs significantly

from that of the other regulations at issue here, the

Court concludes that, notwithstanding prior administra-

tive practice, it was not improper for the Secretary to

substitute the fifty percent standard.for the earlier

thirty percent standard. Accordingly, the Court will not

enjoin that part of the new regulation which sets the

prevailing wage as the wage paid to the majority (more

than 50 percent) of the various classes of laborers and

mechanics.

Third. The post-argument briefs, including particu-

larly that of the amicus, focus on the “helper” issue. In

its Memorandum of July 22, 1982, the Court expressed

the view that the various regulations which would permit

a substantial increase in the number of “helpers” in the

construction industry probably did not reflect the will of

the Congress. The Associated Builders and Contractors

argue with considerable vigour that the Secretary’s re-

visions of the “helper” regulations are correct. In this

72a

regard, the amicus points to an alleged statutory mandate

to establish classifications by regtlation that would mir-

ror actual practice; that the scope and significance of the

helper category has expanded dramatically in recent

years (particularly in non-union shops); and that the

helper classification promotes employee opportunity.

These arguments proceed from erroneous premises and

they are insufficient to overcome the conclusions to be

drawn from the basic legislative purpose.

The crux of the matter is this. The integrity of the

statutory scheme requires that each “class of laborers

and mechanics” be comprised of “members” who per-

form “well-defined tasks’ and do not perform traditional

craft work of another, higher paid class. This is a funda-

mental principle with which apparently neither the Sec-

retary of Labor nor the amicus quarrel, at least not in

theory. Indeed, the amicus argues that the Secretary’s

definition of “helper” will maintain “the stict lines of

demarcation between skilled and unskilled labor.’ Mum-

orandum at p. 15. But in practice that distinction can be

maintained only if the tasks of the helper class are de-

fined as discrete and distinguishable from those of la-

borers and mechanics.

Yet the new regulations would allow helpers to substi-

tute for laborers and for journeymen, and that helpers

would be allowed to perform tasks of all sorts. Under

these regulations, “helpers” would not be performing

well-defined tasks, either with regard to type of skill or

to amount of experience, but they would be available in

a general way to substitute for workers of many types

and many levels of experience.°

The amicus suggests that any problems in this regard

are remedies by the provision in the regulation which

5 The legislative history indicates that when “actual practice”

may be equated with a practice to evade the prevailing wage re-

quirement it is not determinative. Cong. Rec. Senate, p. 12073, July

80, 1935.

73a

forbids contractors to pay reduced rates for work “prop-

erly performed” by classes other than helpers (Mem-

orandum, p. 17). However, since the entity which will

determine whether a particular task is “properly per-

formed” by a helper or by a skilled person will be the

contractor, it may reasonably be assumed that his de-

termination will follow his self-interest: lower-paid

helpers will be regarded as properly performing many

tasks traditionally beyond their competence. When Con-

gress enacted the Davis-Bacon Act, it was well aware of

these practicalities (see, e.g., Cong. Rec. Senate, p. 12073

(July 30, 1935)) and it sought to guard against them.

It is quite clear that the new regulation would subvert

the congressional will.*

Despite its seeming complexity, the basic issue govern-

ing this lawsuit is relatively simple. Congress enacted

the Davis-Bacon Act and the Copeland Act in the 1930s

with certain purposes in mind. Regulations were issued

very shortly following the enactments to implement the

words and purposes of the legislature. In spite of sub-

stantial public debate concerning both the laws and the

regulations in the years since then, the Congress has not

amended the law and it has not expressed its displeasure

with the regulations. Morevoer, fifteen Secretaries of

Labor serving under eight Presidents have never altered

the regulatory scheme. The present Secretary’s claim to

have discovered a wholly different congressional intent

rings hollow in the light of that history.

* As for the argument of the amicus that increased use of the

helper classification promotes employee opportunity, it appears that

as of 1978 minority participation in joint union-management ap-

prenticeship programs was 21.2 percent while its participation in

open-shop trading programs was only 11.4 percent. Department

of Labor data tabulated for Union and Open Shop Construction,

p. 72 (1978). The regulation adopted by the present Secretary is

likely to have the effect of allowing contractors to replace higher

wage minority laborers with lower wage minority helpers.

74a

For the reasons stated, the Court this day permanently

enjoins the enforcement of all the new regulations at

issue here, with the sole exception of the regulation which

defines the prevailing wage in terms of a higher per-

centage of employees in each class of laborers and me-

chanics than was provided for heretofore.

/s/ Harold H. Greene

HAROLD H. GREENE

United States District Judge

Dated: December 23, 1982

75a

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No, 82-1631

BUILDING AND CONSTRUCTION “RADES’ DEPARTMENT,

AFL-CIO, et ai.,

Plaintiffs,

Vv.

RAYMOND J. DONOVAN, et al.,

Defendants.

[Filed Dee. 23, 1982]

ORDER

Upon consideration of the various briefs and memo-

randa submitted by the parties and the amicus, the oral

argument, and the entire record herein, it is this 23rd

day of December, 1982,

ORDERED That, with the exception noted below,

plaintiffs’ motion for summary judgment be and it is

hereby granted, and defendants’ motion for summary

judgment be and it is hereby denied; and it is further

ORDERED That the regulations published in the Fed-

eral Register by the Secretary of Labor on May 28, 1982

(revisions to C.F.R. Parts 1 and 5) allegedly in im-

plementation of the Davis-Bacon Act, 40 U.S.C. § 276a

et seg., and the Copeland Anti-Kickback Act, 40 U.S.C.

$ 276c, be and they are hereby declared invalid with the

exception of the regulation redefining the “prevailing

wage” (47 Fed. Reg. 23,652 (1982), codified in 29

C.F.R. § 1.2(a) (1)), and it is further

76a

ORDERED That the defendants, their agents and em-

ployees, and all those acting pursuant to their direction

or in concert with them be and they are hereby perma-

nently enjoined from enforcing or giving any effect to

such regulations, including 47 Fed. Reg. 23652, 23654-

55, 23668, 23679, codified in 29 C.F.R. §§ 1.38(d), 1.7(b),

1.7(d), 55(a).

/s/ Harold H. Greene

HAROLD H. GREENE

United States District Judge

77a

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 82-1631

BUILDING AND CONSTRUCTION TRADES’ DEPARTMENT,

AFL-CIO, et al.,

Plaintiffs,

Vv.

RAYMOND J. DONOVAN, et al.,

Defendants.

[Filed Jan. 17, 1983]

ORDER

Upon consideration of Defendants’ Motion to Amend

Judgment, the materials submitted by the parties and

the entire record herein, it is, this 17th day of January,

1983

ORDERED that the Order of this Court filed Decem-

ber 23, 1982 is amended as follows:

The regulations published in the Federal Register by

the Secretary of Labor on May 28, 1982 concerning the

Davis-Bacon Act and the Copeland Anti-Kickback Act

herein declared invalid and enjoined are the following

and none others:

1, 29 C.F.R. Section 1.3(d), published at 47 Fed.

Reg. 23,652 (exclusion of Davis-Bacon construction

in wage determinations)

2. 29 C.F.R. Section 1.7(d), published at 47 Fed.

Reg. 23,655 (exclusion of metropolitan data in wage

determinations)

78a

8. 29 C.F.R. Section 1.7(d), published at 47 Fed.

Reg. 23,655 (helpers)

4. 29 C.F.R. Section 5.2(n) (4), published at 47 Fed.

Reg. 23,667 (helpers)

5. 29 U.S.C. Section 5.5(a) (1) (ii) (A), published

at 47 Fed. Reg. 23,668 (helpers)

6. 29 C.F.R. Section 5.5(a) (4) (iv), published at 47

Fed. Reg. 23,670 (helpers)

7. 29 C.F.R. Section 5.5(a) (3) (ii), published at 47

Fed. Reg. 23,669 (Copeland Act requirements)

8. 29 C.F.R. Section 3.3(b), published at 47 Fed.

Reg. 23,679 (Copeland Act requirements)

9. 29 C.F.R. Section 5.6(a) (2) and (3), published

at 47 Fed. Reg. 23,671 (Copeland Act requirements)

The regulations published May 28, 1982 other than the

nine itemized above are not declared invalid or enjoined.

/s/ Harold H. Greene

United States District Judge