North Georgia Bldg. & CTC v. US Dept. of Transp.

• Decision Date: 16 June 1975
• Docket Number: Civ. A. No. C75-955A.
• Citation: 399 F. Supp. 58
• Parties: NORTH GEORGIA BUILDING & CONSTRUCTION TRADES COUNCIL, Plaintiff, v. U. S. DEPARTMENT OF TRANSPORTATION et al., Defendants.
• Court: U.S. District Court — Northern District of Georgia

399 F. Supp. 58

NORTH GEORGIA BUILDING & CONSTRUCTION TRADES COUNCIL, Plaintiff, v. U. S. DEPARTMENT OF TRANSPORTATION et al., Defendants.

Civ. A. No. C75-955A.

United States District Court, N. D. Georgia, Atlanta Division.

June 16, 1975.

Harris Jacobs, James T. Langford, Jacobs, Jacobs & Davis, Atlanta, Ga., Robert L. Mitchell, Mitchell, Yancey & Fink, Atlanta, Ga., Sherman, Dunn, Cohen, Thomas K. Dunn, Washington, D. C., for plaintiff.

William Mallard, Asst. U. S. Atty., Joseph A. Blundon, Asst. Chief Counsel, Urban Mass Transp. Admin., Washington, D. C., John R. Strother, Jr., Strother & Weiner, Atlanta, Ga., for Blount Constr. Co., Inc.

W. Stell Huie, G. Donald Johnson, Huie, Brown & Ide, Atlanta, Ga., for Metropolitan Atlanta Rapid Transit Authority & MARTA defendants.

Beverley R. Worrell, Regional Solicitor, W. T. Truett, Atty., U. S. Dept. of Labor, Atlanta, Ga., for Sec. of Labor & Dept. of Labor.

ORDER

EDENFIELD, Chief Judge.

In this action the court is presented with a dispute the resolution of which hinges on a determination of the proper procedures to be followed by federal agencies and contractors in complying with the Davis-Bacon Act, 40 U.S.C. § 276a et seq., and the regulations promulgated to implement that statute. In order to dispose of the case it is necessary to explore at some length both the factual backdrop of this dispute and the legal framework within which it arose.

The plaintiff is an association of trade unions. There are three groups of defendants. The first is comprised of the United States Department of Transportation, the Urban Mass Transportation Administration (which is part of the Department of Transportation), and Carl B. Richardson, the local Chief Engineer of the Urban Mass Transportation Administration. The interests of all of these defendants are identical and for convenience they will hereafter be collectively referred to as the Department of Transportation or DOT. The second is Blount Construction Company, a local contractor. The third group of defendants includes the Metropolitan Atlanta Rapid Transit Authority, its general manager, and ten of its board members. All of these defendants will be collectively referred to as MARTA. Finally, the United States Department of Labor has been joined as a party and will be referred to as the Department of Labor or DOL.

On April 11, 1975, defendant MARTA began soliciting bids for a construction project denominated as "Contract No. GNO-1, Contract Proposal No. 218 Brown's Mill Road Bus Facilities Site Work." It was specified in the bid proposal that the applicable minimum wage scale would be that established as "Highway Construction Rates"¹ in the Atlanta area. The plaintiff, upon being apprised of this bid proposal, protested to the defendants that the proper rate scale was the higher "Building Construction Wage Rates". The defendants made little or no response to these complaints. On April 14, 1975, however, these complaints were supplemented by the arrival of a telegram from an official of the Department of Labor stating his agreement with the plaintiff's position. On May 15, 1975, MARTA, still without responding to the complaints, proceeded to open the bids. Defendant Blount Construction Company was the apparent low bidder. On May 22, 1975 the plaintiff filed this action and on June 2, 1975, it came on for a preliminary hearing. At that hearing the assistant United States attorney aligned the executive branch with the defendants. The court verbally ordered the Department of Labor joined as a party and it was thenceforth represented by one of its staff attorneys rather than by a representative of the Justice Department. At the conclusion of the hearing all parties were afforded an opportunity to submit briefs. During the next week two briefs signed by assistant United States attorneys were filed. These briefs came to diametrically opposite conclusions, one presenting the position of the Department of Transportation and the other that of the Department of Labor. Finally, by letter dated June 10, 1975, the court was informed that this intra-executive branch squabble had been resolved and the entire executive branch should now be regarded as supporting the plaintiff's position. The letter also requested permission to withdraw the brief filed on behalf of DOT. This development both clarifies and muddies the waters of this case. On the one hand it brings the federal defendants into a harmonious posture, albeit on the side of the plaintiff. On the other hand it casts some doubt on the wisdom of the remaining defendants' tactical decision to heavily rely on DOT having positioned itself as their ally.

The legal framework is equally complex. The Davis-Bacon Act requires that:

"(a) The advertised specifications for every contract in excess of $2,000, to which the United States or the District of Columbia is a party, for construction, alteration, and/or repair, including painting and decorating, of public buildings or public works of the United States or the District of Columbia within the geographical limits of the States of the Union, or the District of Columbia, and which requires or involves the employement of mechanics and/or laborers shall contain a provision stating the minimum wages to be paid various classes of laborers and mechanics which shall be based upon the wages that will be determined by the Secretary of Labor to be prevailing for the corresponding classes of laborers and mechanics employed on projects of a character similar to the contract work in the city, town, village, or other civil subdivision of the State, in which the work is to be performed, or in the District of Columbia if the work is to be performed there . . .." 40 U.S.C. § 276a(a).

The Davis-Bacon Act is applicable to contracts entered into pursuant to the Urban Mass Transportation Act of 1964, 49 U.S.C. § 1609. All of the parties agree that under § 1609 the Davis-Bacon Act applies to the MARTA contract involved in this litigation.

The Secretary of Labor is empowered to promulgate regulations to implement the Act. 40 U.S.C. § 276c. The regulations promulgated pursuant to this authority provide two alternate methods by which the required wage scale determinations can be made. First, a specific project can be submitted for wage determination. 29 C.F. R. § 1.5 (1974). Alternately, in a geographical area in which wage scales are well settled and numerous federal contracts are awarded annually, the Secretary has granted himself discretion to publish general wage rate determinations for an area. 29 C.F.R. § 1.5(b). The latter method is in force in the Atlanta area. Once general wage determinations for an area have been published the contracting agency makes the initial determination of the appropriate wage scale for a specific project. This determination involves two steps, first deciding which wage scale applies to the project in question and second transposing that rate scale from the Federal Register to the bid proposal. Obviously, the first of these steps is the most likely to be controversial and it is what has given rise to the present controversy. The regulations, however, also require that:

"All questions arising in any agency relating to the application and interpretation of the rules contained in this part and in Parts 1 and 3 of this subtitle, and of the labor standards provisions of any of the statutes listed in § 5.1 shall be referred to the Secretary for approriate ruling or interpretation." 29 C.F.R. § 5.12.

The provision allowing use of general wage determinations is contained in Part 1 of that subtitle and the Urban Mass Transportation Act of 1964 is listed in § 5.1. It is clear that this regulation was intended to apply to the situation presented by this controversy.²

Once a question is submitted to the Secretary of Labor the regulations provide for several procedural steps within the Department. Once the Department has issued a final decision, any interested party can appeal to the Wage Appeals Board, 29 C.F.R. § 1.16 (1974).

Although the regulations do not provide for any further appeal one final forum is apparently available. Once the contract is let the decision to disburse funds under it in certain situations is vested in the Comptroller General, 40 U.S.C. § 276a-2, and that office apparently contends it has the power to independently evaluate and decline to follow decisions rendered on Davis-Bacon Act questions by the Labor Department and Wage Appeals Board. See the Comptroller General's Opinions filed as exhibits to MARTA's brief.

The existence of this final forum has given rise to one other legal dispute. Through Reorganization Plan No. 14 of 1950, 1950 United States Code Congressional Service, pp. 1435-36, President Truman sought to insure effective enforcement of several acts, including the Davis-Bacon Act, by centralizing enforcement powers in the Department of Labor. He, however, rather mysteriously also provided that "actual performance of enforcement activities, normally including the investigation of complaints of violations, will remain the duty of the respective agencies awarding the contracts or providing the Federal assistance."³ A dispute has arisen over this reservation of power to the contracting agency. DOL, joined by the plaintiff, contends that this applies only to the minutiae of enforcement after a contract has been let (for example, the proper job classification of a particular worker) but not as to any broader question such as that presented here: a dispute which would affect the wages payable on every job involved in a contract and which arose before the contract had been executed. MARTA reads the reservation more broadly and claims the Comptroller General as an ally. A reading of the Comptroller General's Opinions cited by MARTA, however, leaves some doubt whether this alliance exists. It is clear that the Comptroller General takes a more restrictive view of Labor's proper role than does...