U.S. DEPARTMENT OF COMMERCE BUREAU OF PUBLIC ROADS Washington, D.C. MAY 4, 1962. Circular memorandum to: Directors, regional and division engineers. From: David S. Black, General Counsel. Subject: Types of survey work covered by the Davis-Bacon Act and section 113 of title 23, United States Code; additional information concerning. Reference is made to the circular memorandums of July 10 and September 25, 1961, which describe and clarify the requirements of the opinion of the Solicitor of the U.S. Department of Labor relative to the matter of coverage of survey crews within the contemplation of the Davis-Bacon Act, section 113 of title 23, United States Code, and other related acts. There is attached a copy of a recent letter of the Secretary of Labor addressed to Mr. Roger W. Loveless, P. E., president, Ohio Society of Professional Engineers, dated November 29, 1961, dealing with the general subject of the circumstances in which the Department of Labor will apply Davis-Bacon Act coverage to members of survey crews. This letter was furnished for our information and guidance in administering prevailing wage requirements applicable to survey crews. It indicates that the Department of Labor intends to apply the DavisBacon and related acts, including section 113 of title 23, United States Code, coverage to survey crews only in those areas of the country where members of the survey crews such as rodmen and chainmen are in fact laborers and mechanics employed upon a casual basis to perform what is primarily physical work without thought of professional training or advancement. It recognizes that undoubtedly there are many instances where workers on survey crews perform their work in a professional or subprofessional manner, or may even qualify as bona fide professions within the meaning of the Fair Labor Standards Act and regulations promulgated thereunder. Such personnel, it is presumed, would not be viewed as "laborers or mechanics" within the contemplation of the above acts. Accordingly, it is presumed that the Davis-Bacon and related acts would not be held applicable to such circumstances. In view of the foregoing, in the areas where it is the prevailing practice to employ professional or subprofessional personnel as members of survey crews, requests for wage determinations should be submitted in accordance with the provisions of the circular memorandum of July 10, 1961. However, there should be appended to the request a certification from the appropriate State highway official, citing attention to the attached Secretary of Labor letter, and stating that the prevailing area practice is to employ professional or subprofessional personnel in such teams. Further, if only certain members of the survey team fall into the category of professional or subprofessional personnel, these members should be carefully identified. Such certification should be accompanied by such evidence of the prevailing practice as is available to the State. NOVEMBER 29, 1961. Mr. ROGER W. LOVELESS, P.E., President, Ohio Society of Professional Engineers, DEAR MR. LOVELESS: This will acknowledge your letter of November 15, 1961, and the presentation which was enclosed. The points which that presentation covers are indeed well taken in many factual situations, and when an enforcement case arises involving such a situation, careful consideration will be given to your views. It has been brought to our attention, however, that upon occasion 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 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. Because conditions do vary as widely and because undoubtedly there are many instances when workers on survey crews perform their work in a professional or subprofessional manner, or many even qualify as bona fide professions within the meaning of the Fair Labor Standards Act and regulations promulgated thereunder, it is our purpose to proceed slowly and carefully under the Davis-Bacon Act. Each case will be examined and judged on its own facts and, as previously noted, the views which you have so ably expressed will be afforded careful consideration. Your interest in this matter is appreciated. Yours sincerely, Secretary of Labor. U.S. DEPARTMENT OF LABOR, Mr. IRVING HELBLING, Hackler, Flaum & Ansell, Los Angeles, Calif. DEAR MR. HELBLING: This will acknowledge your letter of May 24, 1960, addressed to Mr. Miller, and the attached application of local 6, 3 and 12 of the International Union of Operating Engineers that this office reconsider the position expressed in Acting Assistant Solicitor Beaird's letter of September 14, 1955 to Mr. Duncan Campbell. In that letter it was pointed out that survey work was often a preconstruction activity performed under a contract separate and apart from that which actually called for construction within this meaning of the Davis-Bacon Act and related acts. It was also stated therein that the members of survey crews were engaged in professional or subprofessional work and could not, therefore, be considered "laborers or mechanics" within the meaning of the act. You are quite correct in stating that the problem has not heretofore been submitted in any fashion comparable to your carefully documented application. Although the position which we have previously entertained is of long standing, we have again undertaken to review the subject and have arrived at some new conclusions. It is still our position that preliminary survey work such as the preparation of boundary surveys and topographical maps is not a part of construction, covered by the act, especially if performed pursuant to a separate contract. We are prepared, however, to assert coverage of survey work which is undertaken immediately prior to or during construction which involves laying off distances and angles to locate construction lines and other layout measurements. This includes the setting of stakes, the determination of grades and levels, and other work which is performed as an aid to the crafts which are engaged in the actual physical construction of projects. On With respect to the status of particular employees, we agree that chairmen and rodmen whose work is largely of a physical nature such as clearing brush, sharpening and setting stakes, handling the rod and the tape, and other comparable activities are laborers and mechanics within the meaning of the act. the other hand, a party chief has duties which would appear to place him in an executive class with overtones of a professional. Such a person always supervises two or more persons on the job and, as you are aware, we have never asserted that foremen or other supervisory personnel are within the act. The party chief also has substantial clerical duties and often exercises the arts of the engineering profession. Both of these classifications are, of course, excluded from the group commonly accepted as laborers or mechanics. The only classification which presents substantial difficulty is that of an instrumentman working under a party chief as part of a four-man crew. These men may occasionally perform the physical work of rodmen or chainmen. They also may carry and place the instruments as well as operate them. They make the sighting and take and record the readings. They may be called upon to exercise discretion, judgment, and skill involving problems encountered in the field and they must be able to read blueprints and make sketches or drawings. Again, on the other hand, while construction is actually in progress they may function only as an aid to the construction workers in such matters as determining the placement and levels of pilings, the placement of steel beams and girders, the location of holes, etc. In the specific area covered by your application, they are members of a union engaged in an apprenticeable trade and customarily are paid by the hour. While working under a party chief, instrumentmen are not employed in a bona fide supervisory position. Neither do they qualify as professionals under regulations, part 541, issued under the Fair Labor Standards Act. The tests provided by these regulations or tests similar to them are quite commonly accepted under both Federal and State laws. Therefore a substantial amount of physical work being involved, we believe it appropriate to regard instrumentmen employed under a chief party as laborers or mechanics, with the reservation, however, that a contrary conclusion might be reached in particular cases if the facts and circumstances were different from those reflected in your presentation. Accordingly, it is our intention to include in future wage determinations, where appropriate, the classifications of "rodmen," "chainmen," and "instrumentmen (serving under a party chief)." Very truly yours, HAROLD C. NYSTROM, Acting Solicitor of Labor. 88711 0-62-pt. 2-16 Report to HON. ARTHUR J. GOLDBERG Secretary of Labor Washington, D. C. From OHIO SOCIETY OF PROFESSIONAL ENGINEERS Columbus, Ohio Reasons why Instrument Men, Rodmen, and Chainmen of Survey Crews on Construction Contracts Involving Federal Cooperation Should Not Come Under the Provisions of the Davis -Bacon Act Amplification of Preliminary Cleveland White House Regional Conference, November 14, 1961 |