B-105067, NOV 6, 1951

B-105067: Nov 6, 1951

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SECRETARY: REFERENCE IS MADE TO YOUR LETTER OF AUGUST 7. ARE NOT LABORERS OR MECHANICS SUBJECT TO THE PROVISIONS OF THE DAVIS-BACON ACT BUT ARE SEAMEN COVERED BY THE MARITIME WORKERS ACTS. THE SOLICITOR OF LABOR ADVISED THAT OPERATING PERSONNEL ARE CONSIDERED TO BE LABORERS OR MECHANICS AND THUS ARE WITHIN THE TERMS OF THE DAVIS-BACON ACT. ACCOMPANYING YOUR LETTER IS A COPY OF THE SOLICITOR'S LETTER OF MAY 11. WHICH STATES THAT IT WAS WRITTEN AT THE DIRECTION OF THE SECRETARY OF LABOR AND SETS FORTH IN DETAIL THE BASIS FOR THE CONCLUSION REACHED THEREIN TO THE EFFECT THAT GOVERNMENT CONTRACTS FOR DREDGING INVOLVE THE CONSTRUCTION. ALTERATION OR REPAIR OF "PUBLIC WORKS OF THE UNITED STATES" BY "LABORERS AND MECHANICS" AND ARE SUBJECT TO THE DAVIS- BACON ACT.

B-105067, NOV 6, 1951

PRECIS-UNAVAILABLE

THE HONORABLE

THE SECRETARY OF THE ARMY

MR DEAR MR. SECRETARY:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 7, 1951, REQUESTING A DECISION AS TO WHETHER CONTRACTS FOR DREDGING, INVOLVING NO SHORE WORK, SHOULD CONTAIN A WAGE PREDETERMINATION IN ACCORDANCE WITH THE TERMS OF THE DAVIS- BACON ACT, 49 STAT. 1011, 40 U.S.C. 276A.

IN YOUR LETTER YOU STATE THAT ON THE BASIS OF A SUPREME COURT DECISION, ELLIS V. UNITED STATES, 206 U.S. 246, AND OPINIONS OF THE ATTORNEY GENERAL, 29 OAG 583 AND 38 OAG 150, IT HAS BEEN CONSIDERED THAT DREDGE PERSONNEL, EMPLOYED ON BOARD THE DREDGE AND ENGAGED SOLELY IN OPERATION THEREOF, ARE NOT LABORERS OR MECHANICS SUBJECT TO THE PROVISIONS OF THE DAVIS-BACON ACT BUT ARE SEAMEN COVERED BY THE MARITIME WORKERS ACTS. YOU FURTHER STATE, HOWEVER, THAT IN A LETTER DATED MAY 11, 1951, ADDRESSED TO THE PRESIDENT OF THE INTERNATIONAL UNION OF OPERATING ENGINEERS, THE SOLICITOR OF LABOR ADVISED THAT OPERATING PERSONNEL ARE CONSIDERED TO BE LABORERS OR MECHANICS AND THUS ARE WITHIN THE TERMS OF THE DAVIS-BACON ACT, SUPRA. ACCOMPANYING YOUR LETTER IS A COPY OF THE SOLICITOR'S LETTER OF MAY 11, 1951, WHICH STATES THAT IT WAS WRITTEN AT THE DIRECTION OF THE SECRETARY OF LABOR AND SETS FORTH IN DETAIL THE BASIS FOR THE CONCLUSION REACHED THEREIN TO THE EFFECT THAT GOVERNMENT CONTRACTS FOR DREDGING INVOLVE THE CONSTRUCTION, ALTERATION OR REPAIR OF "PUBLIC WORKS OF THE UNITED STATES" BY "LABORERS AND MECHANICS" AND ARE SUBJECT TO THE DAVIS- BACON ACT, IF THE AMOUNT OF THE CONTRACT IS IN EXCESS OF $2,000.

THERE APPEARS TO BE NO QUESTION THAT A GOVERNMENT CONTRACT FOR DREDGING WORK CONSTITUTES AN AGREEMENT FOR A "PUBLIC WORK." FURTHERMORE, THE SOLICITOR POINTS OUT THAT TODAY THE DUTIES AND WORKING CONDITIONS OF THE MAJORITY OF THE WORKERS EMPLOYED ON GOVERNMENT CONTRACTS FOR DREDGING ARE LIKE THOSE OF COMPARABLE WORKERS EMPLOYED ON LAND; THAT ANY DUTIES OF A MARITIME NATURE WHICH MIGHT BE PERFORMED ARE ONLY MINOR, INCIDENTAL, OR OCCASIONAL; AND THAT THEY ARE NEITHER LICENSED SEAMEN NOR REQUIRED TO HAVE KNOWLEDGE OF THE LAWS OF NAVIGATION.

IN VIEW THEREOF AND SINCE UNDER REORGANIZATION PLAN NO. 14 OF 1950, 64 STAT. 1267, 15 F.R. 3176, THE SECRETARY OF LABOR IS CHARGED WITH THE RESPONSIBILITY OF PRESCRIBING APPROPRIATE STANDARDS, REGULATIONS, AND PROCEDURES FOR THE ADMINISTRATION AND ENFORCEMENT OF THE DAVIS-BACON ACT, IT APPEARS THAT THE DETERMINATION MADE BY THE DEPARTMENT OF LABOR, AS EXPRESSED IN THE SOLICITOR'S LETTER, LEGALLY MUST BE ACCEPTED AS CONTROLLING IN THE MATTER AND THEREFORE AS REQUIRING THAT THE PROVISIONS OF THAT ACT BE INCORPORATED INTO FUTURE ARMY CONTRACTS SUCH AS HERE IN QUESTION WHERE THE AMOUNT INVOLVED IS IN EXCESS OF $2,000.