BUILDING AND CONST. TRADES DEPT., AFL-CIO v. Turnage, Civ. A. No. 87-2827.

• Decision Date: 28 October 1988
• Docket Number: Civ. A. No. 87-2827.
• Citation: 705 F. Supp. 5
• Parties: BUILDING AND CONSTRUCTION TRADES DEPARTMENT, AFL-CIO, et al., Plaintiffs, v. Thomas K. TURNAGE, Defendant.
• Court: U.S. District Court — District of Columbia

705 F. Supp. 5

BUILDING AND CONSTRUCTION TRADES DEPARTMENT, AFL-CIO, et al., Plaintiffs, v. Thomas K. TURNAGE, Defendant.

Civ. A. No. 87-2827.

United States District Court, District of Columbia.

October 28, 1988.

Terry R. Yellig, Sherman, Dunn, Cohen, Leifer & Counts, Washington, D.C., for plaintiffs.

Raymond M. Larizza, Civ. Div., Dept. of Justice, Washington, D.C., for defendant.

MEMORANDUM AND ORDER

REVERCOMB, District Judge.

This case is before the Court on cross-motions for summary judgment. The issue before the Court is whether the Wage Appeals Board ("WAB"), acting as delegee of the Secretary of Labor, has been faithful to Congressional intent in its interpretation of the Davis-Bacon Act, 40 U.S.C. § 276a et seq.

In Outpatient Clinic, Crown Point, Indiana, WAB Case No. 86-33 (June 26, 1987), the WAB incorporated the provisions of the Act, including a wage determination reflecting applicable prevailing wage rates, into a contract between the Veterans Administration ("VA") and Hamstra Builders, Inc., to construct and lease an outpatient clinic for the VA. The Davis-Bacon Act requires that workers performing construction work on public buildings or public works under contracts in excess of $2,000, to which the United States is a party, be paid the prevailing private-sector wage rate. Plaintiffs request the Court to compel the defendant to comply with the decision of the WAB. The defendant argues that the WAB's interpretation of the Act is not an accurate reflection of the intent of Congress.

Under Chevron, U.S.A. v. Natural Resources Defense Counsel, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1983), judicial deference to an agency's interpretation of a statute committed to it for administration is required if, in the absence of a clear and unambiguous indication of Congressional intent, the agency has construed the statute reasonably. The parties have joined issue on the question of whether there is unambiguous evidence of Congressional intent to apply the Davis-Bacon Act to this case. The question is whether the Act was intended to apply to lease agreements involving the United States, or was meant to be restricted to contracts where the property is owned by the United States.

The defendant concedes that the legislative history of Davis-Bacon itself does not resolve the issue of whether the Act applies to government leases. In an effort to show that Congress intended to make a distinction between leased and owned property, the defendant cites related statutes which apply Davis-Bacon to specialized circumstances, or which make distinctions between leased and owned property for purposes other than determining wage rates. The Court is not pursuaded that the examples cited reveal Congressional intent with the level of clarity required under Chevron, where the Supreme Court posed the question as being "whether Congress has directly spoken to the precise question at issue." 467 U.S. at 842, 104 S.Ct. at 2781. The Court went on to say that "if, however, the court determines Congress has not directly addressed the precise question at issue ... the question for the court is whether the agency's answer is based on a permissible construction of the statute." Id. at 843, 104 S.Ct. at 2782. The evidence of intent adduced by the defendant relates to statutes with specialized purposes, e.g., the Postal Reorganization Act of 1970, 39 U.S.C. § 410. The defendant argues that the fact that Congress found it necessary to specify that locally prevailing wage rates would apply to construction work done on property leased to the Postal Service demonstrates that Congress felt that Davis-Bacon would not have applied, by its own force, in the absence of express language to that effect. However, the conditions under which prevailing wage rates are required in the Postal Reorganization Act are different from the conditions which trigger Davis-Bacon: Davis-Bacon coverage is triggered by the dollar amount of the construction work, while the...