705 F.Supp. 5 (D.D.C. 1988), Civ. A. 87-2827, Building and Const. Trades Dept., AFL-CIO v. Turnage

• Docket Nº: Civ. A. 87-2827
• Citation: 705 F.Supp. 5
• Party Name: Building and Const. Trades Dept., AFL-CIO v. Turnage
• Case Date: October 28, 1988
• Court: United States District Courts, United States District Court (Columbia)

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705 F.Supp. 5 (D.D.C. 1988)

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.

Oct. 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

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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 Chev...