ployees at the asphalt plant and rock quarry is considered functionally integrated with and incidental to the sale of the material and therefore not subject to the Davis-Bacon and related acts. In other words, the drivers making the delivery are employees of a materialman and, therefore, not covered, provided they perform no additional substantial operation at the project site. The same reasoning would apply to employees other than truckdrivers, engaged at the quarry or plant site, their coverage being dependent on whether the operation was that of a true materialman open to the public, or whether the operation was set up exclusively to perform part of the work called for by the construction contract. Very truly yours, STUART ROTHMAN, U.S. DEPARTMENT OF LABOR, Mr. MALCOLM P. MCGREGOR, Assistance, Legal Division, Office of the Chief of Engineers, Department of the Army, Washington, D.C. DEAR MR. MCGREGOR: This is in reply to your letter and enclosures of November 20, 1957, in which you request an opinion, in accordance with section 5.11 of Regulations, Part 5 (29 CFR, subtitle A), as to the applicability of the DavisBacon Act (40 U.S.C. 276a), to the employees of the Westlake Quarry & Material Co., Inc., a firm currently active in connection with a contract awarded by the Department of the Army, Corps of Engineers, to the Markham & Brown Co. The facts which this Department has received are as follows: On October 2, 1957, the Corps of Engineers awarded contract No. DA-03-050CIVENG-58-155 to the Markham & Brown Co., 1961 North Industrial Boulevard, Dallas, Tex. The contract provides for bank-stabilization work consisting of bankhead paving, rock-fill dikes, and trench-fill revetment. The contract specifications call for 77,000 cubic yards of grading and excavation under item 1 and 137,000 tons of quarry-run stone with fines under item 2. The work is to be performed between river miles 343 and 344 on the Arkansas River, which is approximately 10 miles below Van Buren, Ark. On October 4, 1957, the Markham & Brown Co. entered into an agreement with the Westlake Quarry & Material Co., Inc., of Roberston, Mo., whereby the Westlake Co. agreed to furnish, in accordance with the contract specifications, the quarry-run stone with fines required by item 2. This material was to be delivered by truckdrivers employed by the Westlake Company f.o.b. at the riverbank at a cost to the Markham & Brown Co. of $1.35 per ton. The material is put in place by the Markham & Brown Co. In order to fulfill this commitment, the Westlake Co. leased and opened a quarry site approximately 10 miles north and 2 miles west of the site of the revetment work. The lease is being paid for on a royalty basis of 3 cents per ton. As of November 8, 1957, the Westlake Co. had moved to the quarry site only that machinery necessary to produce quarry-run stone. This machinery generally consists of a shovel, air compressor, air-operated drill, bulldozer, and sometimes a headache ball to break up oversize stone. All of the material taken from this quarry has been delivered to the Markham & Brown Co. with the exception of approximately six or eight loads which were sold to Crawford County, Ark. In the past it has been the normal practice of the Westlake Co. when a quarry was opened for a specific job to abandon it after completion of the particular contract. The Davis-Bacon Act, as amended, provides that every contract subject to the act shall contain a stipulation that the contractor or his subcontractor shall pay all mechanics and laborers employed directly upon the site of the work not less than the prevailing wages as determined by the Secretary of Labor. Since there appears to be no question but that the employees of the Westlake Co. are laborers and mechanics within the meaning of the act, the application of the act involves only the following considerations: (a) Is Westlake Quarry & Material Co., Inc., a subcontractor within the meaning of the act? (b) Are these employees employed "directly upon the site of the work"? In construing these provisions, it must be kept in mind that the Davis-Bacon Act is a remedial labor standards statute and its provisions should be liberally construed to effectuate its basic purposes. Gillioz v. Webb, 99 F. 2d 585, 33 Comp. Gen. 497, and the cases collected at 163 A.L.R. 1302. (a) The Davis-Bacon Act itself makes no attempt to define the word "subcontractor." In order to find such a definition we must therefore turn to similar and related statutes. One such statute is the Miller Act (40 U.S.C.A. 270a), passed during the 1st session of the 74th Congress in 1935. This act provides that before any contract, exceeding $2,000 in amount, for the construction, alteration or repair of any public building or public work of the United States is awarded to any person, such person shall furnish a bond for the protection of all persons supplying labor and material in the prosecution of the work provided for in said contract. The Miller Act repealed the Heard Act (28 Stat. 298, 33 Stat. 811 and 49 Stat. 794), but restated its basic provisions. The close relationship between the Miller Act and the Davis-Bacon Act is shown in both the House and Senate reports on the proposed amendments to the Davis-Bacon Act, which were also considered and passed during the 1st session of the 74th Congress. House of Representatives Report No. 1756, 74th Congress, 1st session, Senate Report No. 1155, 74th Congress, 1st session. In commenting on these amendments, Senator Walsh stated that one of the purposes of the proposed changes was "to provide remedies for laborers and mechanics aggrieved by forced rebates or failure to pay the prevailing rate of wages by allowing such laborers and mechanics to have the same right of action against the contractor and his sureties in court which is now conferred by the bond statute on persons furnishing labor and materials ***," (79 Congressional Record 12072). In this connection see also Senator Walsh's remarks in 79 Congressional Record 13383. In MacEvoy Co. v. United States (322 U.S. 102), a suit brought under the provisions of the Miller Act, the Supreme Court held that "under the more technical meaning, as established by usage in the building trades, a subcontractor is one who performs for and takes from the prime contractor a specific part of the labor or material requirements of the original contract, thus excluding ordinary laborers and materialmen." In Basich Bros. Const. Co. v. United States (159 F. 2d 182), the facts are as follows: Basich Bros. entered into a contract with the United States to perform certain construction work at the DavisMonthan Field, Tucson, Ariz. Duque & Frazzini agreed with Basich Bros. to furnish all the rock, sand, and gravel, in accordance with the contract specifications, necessary for the work. This material was obtained from a site leased and opened by Duque & Frazzini about 4 miles from the field, and hauled to the field by truck. The plaintiff, a truck rental firm, sued the prime contractor and its surety under the provisions of the Miller Act to recover amounts due from Duque & Frazzini. In deciding for the plaintiff, the Court held that Duque & Frazzini were subcontractors within the meaning of that act, rather than materialmen, and quoted the rule in the MacEvoy decision. In Avery v. Ionia County (39 N.W. 742), the Court held that the plaintiff, having agreed to furnish the prime contractor with all the cut stone for a county building according to the specifications under the original contract, was a subcontractor, and not a materialman. See also Holt and Bugbee v. City of Melrose (41 N.E. 2d 562), and G. G. Waugh and Co. v. Rollison (192 S.E. 694). Inasmuch as the Westlake Quarry & Material Co., Inc., took from the prime contractor a specific part of the original contract and agreed to perform for the prime contractor in accordance with the contract specifications, it seems evident from the above decisions that the courts would hold that this firm is a subcontractor within the meaning of that term as it is used in the Davis-Bacon Act, as amended. (b) In ascertaining whether a given contractor or subcontractor is engaged in construction activities on the "site of the work" under the Davis-Bacon Act, both the geographical and functional aspects of his activities must be considered. Geographically, the term "site of the work" normally contemplates a larger area than that which the completed building or other installation will actually occupy and will vary in size with the nature of the work required to be done on the project. Obviously, on some jobs all the contract work may be performed within a few feet from where the installation is made, while on others requiring elaborate facilities, such as a dam or flood control project, the area may be quite extensive. In this connection, Black's Law Dictionary says of "site" that "the term does not of itself necessarily mean a place or tract of land fixed by definite boundaries." The Supreme Court in U.S. Fidelity Co. v. Bartlett (231 U.S. 237), held that under a prime contract for building a breakwater the labor at a quarry which was opened 50 miles away solely to furnish rock "was work done in the prosecution of the work," that is, the breakwater. The decision of the circuit court, which was confirmed by the Supreme Court in that case, stated that "the quarrying of the stone, its transportation and dumping should be regarded as a continuous operation contributing in its entire progress to the prosecution of the work." Also, in United States v. D. L. Taylor Co. (268 Fed. 635). the Court held that "where the specifications and map for a proposed breakwater, with reference to which a contract for its construction was made, showed that the stone for the breakwater must be secured from distant quarries and transported by rail and barge to the site of the breakwater the term 'construction,' as used in the contract, is not confined to the last act of putting the stone in place in the water, but includes the essential steps for getting it to that place * * *. Similarly, the Supreme Court pointed out in Brogan v. National Surety Co. ́(246 U.S. 257) that whether the furnishing of board by a construction contraetor was an integral part of the construction work depends upon whether the boarding house was established as an independent business or exclusively for the construction activities. See also Illinois Surety Co. v. John Davis (244 U.S. 376). In Archer v. Brown and Root, Inc. (241 F. 2d 633), the Court held that construction of a causeway was commerce, and workers producing materials going directly into its construction were producing goods for commerce. More pertinent to the case at hand, however, were the circumstances surrounding the construction of a field plant. This plant produced cylindrical pilings to be used in the causeway construction and without which the causeway, which is 25 miles long, could not have been built. With respect to the workmen engaged in the construction of this plant, the Court held that "those [employees] were, in effect, also building the bridge." The Court further stated that "Whether, as claimed by the employer, it chose to install a plant designed and equipped as a permanent plant for future use after completion of the bridge project, there can be no question whatsoever that this plant was indispensable to performance of this construction contract. The only reason it was built where it was and when it was, was because of this contract. It was an integral part of the whole project." In the instant case a similar situation obtains. The quarry operations, although not physically located on the riverbank where the final spreading and placing operations are performed, are conveniently located close to and within the general area of this work and are so closely integrated with it as to be a part of it. Such arrangements are common in the industry on projects of this nature. Further, Westlake set up its operations for the primary and express purpose of performing its contract with the prime contractor, and its contract relates exclusively to the performance of work called for by the prime contractor's contract with the Corps of Engineers. It follows, therefore, that the laborers and mechanics employed by Westlake at the quarry and in the hauling operations are within the coverage of the Davis-Bacon Act, as amended. DEAR MR. HORSKY: This is in reply to your letter and enclosures of August 5. 1958, submitted on behalf of the National Sand & Gravel Association and requesting our reexamination of earlier opinions. It appears from your letter and accompanying memorandum that you are asking the Department to review its interpretation of the phrase "directly upon the site of the work" as used in the Davis-Bacon Act. More specifically your presentation is directed toward the question of what exclusion or exemption is afforded under the act to materialmen, particularly sand, gravel, and aggregate suppliers. As you know, the Secretary of Labor is vested with the administration of the act and, by Reorganization Plan 14 of 1950 is empowered "in order to insure coordination of administration ***" to prescribe appropriate standards to carry out the intent of the act. ** The act itself does not specifically exclude materialmen. If a materialman enters into a contract subject to the act he is covered to the same extent as any other contractor or subcontractor in like position. The act requires the inclusion of labor standards in the specifications of every Government contract in excess of $2,000, for construction, alteration, or repair of public buildings or public works, and further provides that "every contract based upon these specifications shall contain a stipulation that the contractor or subcontractor shall pay wages as predetermined by the Secretary of Labor to all mechanics and laborers employed directly upon the site of the work." [Emphasis ours.] By a strict and literal reading of the statute, it could be interpreted to mean that the statute was applicable to laborers and mechanics of materialmen who performed any work "directly upon the site of the work." The Department of Labor, however, upon the basis of the legislative history and to carry out the intent of Congress has, under regulations, part 5, section 5.2(f) prescribed as follows: (f) "the terms 'building' or 'work' generally include construction activity as distinguished from manufacturing, furnishing of materials, or servicing and maintenance work ***. The manufacture or furnishing of materials, articles, supplies, or equipment (whether or not a Federal or State agency acquires title to such materials, articles, supplies, or equipment during the course of the manufacture or furnishings, or owns the materials from which they are manufactured or furnished is not a 'building' or work within the meaning of the regulations in this part unless conducted in connection with and at the site of such a building or work as described in the foregoing sentence, * **** The adoption and promulgation of these regulations, under the authority of the aforementioned reorganization plan followed a consistent pattern of interpretation of the act by the Department from the act's very inception. In situations such as you present, where there is a prime contract covered if (1) their employer's contract or subcontract is "based upon the specifications" of the covered prime contract and is thus itself a covered contract, and if (2) they are employed directly on the site of the work covered by such a contract. If the employer is not a covered contractor or subcontractor, employment directly on the site of the work will not establish coverage. In order to fully interpret the meaning of the phrase "directly upon the site of the work" this phrase must be read in its full context. In section 1 of the act it is provided that every contract based upon these specifications shall contain a stipulation that the contractor or subcontractor shall pay all employees employed "directly upon the site of the work ***” [Emphasis ours.] Section 2 contains the following language: "in the event it is found by the contracting officer that any laborer or mechanic employed by the contractor or any subcontractor directly on the site of work covered by the contract ***" It should be clear from the above-quoted language of sections 1 and 2 of the act that the phrase “directly on the site of the work,” modified by the phrases "every contract based upon these specifications" and "of the work covered by the contract." In our opinion, this language of the act shows that the phrase "directly upon the site of the work" must refer to the site of any work covered by the specifications of the prime contract or by the terms of any other contract based on such specifications (a covered contract or subcontract). Since this site necessarily includes the place or places where such contract work is performed, it follows that coverage of the act cannot be restricted only to the actual prime location or site of the public building or public work. In building a highway or a dam, for example, the site of the contract work must of necessity include the areas from which the necessary fill is obtained, although these are outside the land occupied by the road or the dam which is being built. In other words, where part of the work "covered by the contract" of any contractor or subcontractor whose contract is subject to the act is carried on at locations other than the actual location of the prime project, then the place of performance becomes to that extent the site of the work covered by the contract. The employees of the covered contractor or subcontractor who are employed directly on such site are therefore within the meaning of the act. 88711-63-pt. 3- -26 Only a construction of the statute as outlined above would carry out the intent of Congress to protect laborers and mechanics engaged upon work that is an integral part of the whole project; any other construction than that outlined above would do violence to the intent of Congress and provide an avenue for wide open avoidance of the act. For this reason, after carefully considering your arguments, we are constrained to adhere to the policy and statements set forth by this Department in our previous letters to you and in the McGregor letter. DEAR MR. EDELMAN: Inasmuch as the enclosed comments reflect the thinking of our organization on the national level, it is requested that they be made a part of the record of your recent investigative hearings. Thank you for your consideration. Sincerely yours, RUSSELL M. STEPHENS, President. As we understand it, and we're sure you will agree, the Davis-Bacon Act was originally enacted to insure that employers who had collective bargaining agreements would not be placed at a disadvantage in competing for Federal contracts with those employers who did not have such agreements. It is from this basic point of view that we respectfully submit the following statements for your consideration. The Comptroller General has defined the term "mechanic" as "any skilled worker with tools, one who has learned a trade." (18 Comp. Gen. 341) It is a part of our purpose in setting forth the following statements to explain to you why we feel that surveyors are indeed primarily mechanics within the limits of the aforesaid definition. However, experience has proven and is continuing to prove that there is some difference of opinion on this point. It is for this reason that we would desire that the Davis-Bacon Act be more specific in regard to this matter. We would like to call your attention to the following excerpt from a letter dated November 29, 1961, from the Secretary of Labor to the president of the Ohio Society of Professional Engineers: ** in some areas of the country so-called rodmen and chainmen are, in fact, nothing more than laborers and mechanics employed upon a casual basis to perform what is primarily physical work and without thought of professional training or advancement. Such persons are, in our opinion, covered by the Davis-Bacon Act and related acts and entitled to the labor standards protection thereby afforded them. Similarly, in other areas we have found that the majority of employees in these categories are members of labor organizations. They are paid by the hour at bargained rates and they have recognized apprenticeship programs, all of which accords with the status of laborer or mechanic. As a matter of fact, in one area, the principal employers joined with the labor organization in requesting that we assert Davis-Bacon coverage." The physical exertion demanded by the work of surveying cannot be lightly regarded. There is far more to it than the brush cutting and stake sharpening that has been emphasized. In the first place, the nature of the work demands that the surveyor be on his feet and moving about while on the job. To compound this basic requirement, the work is oftentimes performed in rough terrain, the mere negotiation of which requires a high degree of stamina. Not only must the surveyor work in such terrain but he often must also walk considerable distances to the site of the work, transporting his tools and equipment, and oftentimes camping gear, on his back. Another common example of the physical work required of surveyors that does not readily lend itself to execution by other trades is an operation known as "blue topping." When a project such as a road, parking lot, or airstrip |