OHIO ATTORNEY GENERAL'S OPINION

In 1953 the Attorney General of Ohio made

an investigation as to the legality of certifying wages for members

of a survey crew.

As a result Opinion No. 3193, dated October 30,

1953, was rendered.

The Syllabus of this Opinion by C. William O'Neill,

Attorney General, is as quoted below:

"The phrases 'mechanics and laborers'
used in Section 4115.04, Revised Code (Sec. 17-4,
G.C.) and 'laborers, workmen or mechanics' used
in Section 4115.05, Revised Code (Sec. 17-4a, G. C.)
do not authorize the department of industrial relations
to ascertain and determine the prevailing rates of
wages for the following members of a surveying or
engineering party, to wit, chainman, rodman,
instrument man and party chief."

In reply to your letter of July 18, 1961, regarding the July 10, 1961 circular memorandum relating to "coverage of some members of Survey Crews by Interstate wage rates", we are surprised and concerned. This subject was explored quite thoroughly in Ohio in 1953, resulting in the Director of the Ohio Department of Industrial Relations requesting an opinion from the Attorney General as to whether or not members of a survey or engineering party, to wit: chainman, rodman, instrument man and party chief were "laborers or mechanics" and thus subject to the provisions of the law dealing with the establishing of prevailing wage rates.

The decision of the Attorney General of October 30, 1953 held that such members of a survey crew were not "laborers or mechanics" and thus the Department of Industrial Relations was not authorized to ascertain or determine the prevailing rates of wages for such categories. Copies of this opinion are attached for your information.

We consider the analysis of the work performed by Construction Survey Crews outlined in the Department of Labor opinion to not be representative. Specifically identifying our differences in relation to the items enumerated:

(1) The work of the survey crew is not supplementary
to the crafts engaged in the physical construction
of projects but that of interpreting the plans and
design of the engineers in order that the finished
product will be accurately represented.

(2) The work of chainmen and rodmen on our highway pro-
jects is not largely of a physical nature, such as,
clearing brush, sharpening and setting stakes, etc.
The necessary clearing is performed by construction
laborers and in many years of observing the detailed

operation of survey crew, we do not know of a single
instance where they sharpen stakes. The setting of
control points includes many factors involving judg-
ment, with the occasional driving of stakes or es-
tablishing points through other means only being
incidental to the primary function.

(3) The instrument man never functions as an aid to the
construction workers. His function is to set up the
various complicated surveying instruments and give
the necessary direction in interpreting the engineer-
ing plans to assure the project being constructed
properly. This involves turning of angles, running
curves, establishing levels and many other functions
involving engineering calculations.

The rapid development of equipment and procedures in surveying techniques has resulted in the service performed by a survey party to be of an increasingly technical nature.

This subject has been thoroughly considered by the Ohio Society of Professional Engineers and the Ohio Contractors Association for many years. Copies of July 27, 1961 and July 26, 1961 letters from these organizations are included expressing their reaction to your letter of July 18, 1961.

reads:

Subsection (b) of Section 113 of Title 23 of the United States Code

"(b) In carrying out the duties of subsection (a) of
this section, the Secretary of Labor shall consult
with the highway department of the State in which a
project on the Interstate System is to be performed.
After giving due regard to the information thus ob-
tained, he shall make a predetermination of the mini-
mum wages to be paid laborers and mechanics in accord-
ance with the provisions of subsection (a) of this
section which shall be set out in each project advertise-
ment for bids and in each bid proposal form and shall be
made a part of the contract covering the project."

It would appear that if the Secretary of Labor consults with the Ohio Department of Highways and gives due regard to the information obtained as required by The Section, the conclusion is irresistable that he cannot classify the members of a survey crew as mechanics and/or laborers.

The circular from David S. Black, your General Counsel, among other things states:

"In view of the foregoing, requests for the determination
of wage rates for construction contracts subject to the
above-mentioned laws should include, where appropriate,

the classifications of instrumentmen (serving under a
party chief as part of a four-man crew), rodnen and
chainmen.

It would scan that in view of the situation in Ohio, it is not "appropriate" to request the Secretary of Labor to fix wage rates for members of a survey crew.