# Appendix — Building & Construction Trades Department v. Donovan > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0856%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1984 - **Citation:** 464 U.S. 1069 ## Text 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 I I i I a creas United States District Court for the District of Co- lumbia Circuit, Order Denying the Petition for Re- hearing, September 16, 1983 0000000000000... PEE EE United States District Court for the District of Co- lumbia Circuit, Order Denying Rehearing en bane, a scbaubeasibisbdetossdneetes United States District Court for the District of Co- lumbia Circuit, Order for Stay of the Mandate, Oc- IRAE EE Sin EE RADFORD ER EOS United States District Court for the District of Co- lumbia, Memorandum Order, July 22, 1982 .............. United States District Court for the District of Co- lumbia, Memorandum, December 23, 1982 ............... United States District Court for the District of Co- lumbia, Order, December 23, 1982 0000.......cccoocoes United States District Court for the District of Co lumbia, Order, January 17, 1983 ..00000............ Rik A Page la 45a 46a 47a la 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 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0856%3A2. Public record. Not legal advice.