Miree Const. Corp. v. Dole

• Decision Date: 24 January 1990
• Docket Number: Civ. A. No. CV89-PT-0607-E.
• Citation: 730 F. Supp. 385
• Parties: MIREE CONSTRUCTION CORPORATION, Plaintiff, v. Elizabeth DOLE, Secretary of United States Department of Labor, Defendant. The Building and Construction Trades Dept., AFL-CIO BCTD, Amicus.
• Court: U.S. District Court — Northern District of Alabama

730 F. Supp. 385

MIREE CONSTRUCTION CORPORATION, Plaintiff, v. Elizabeth DOLE, Secretary of United States Department of Labor, Defendant The Building and Construction Trades Dept., AFL-CIO BCTD, Amicus.

Civ. A. No. CV89-PT-0607-E.

United States District Court, N.D. Alabama, E.D.

January 24, 1990.

Braxton Schell, Jr. and Bradley Alan Norton, Bradley Arant Rose & White, Birmingham, Ala., for plaintiff.

Frank W. Donaldson, U.S. Atty. and D. Wayne Rogers, Jr., Asst. U.S. Atty., N.D. Ala., Birmingham, Ala., for defendant.

John Lee Quinn, Longshore Nakamura & Quinn, Birmingham, Ala., for amicus curiae.

MEMORANDUM OPINION

PROPST, District Judge.

This matter comes before the court upon the Motion for Summary Judgment filed by Miree Construction Corporation ("Miree") on July 27, 1989, and the cross Motion for Summary Judgment filed by the Secretary of the Department of Labor (the "Secretary"), on October 11, 1989.

Miree was the contractor on three construction projects¹ which were subject to wage determinations² made pursuant to the provisions of the Davis-Bacon Act, 40 U.S.C. § 276a et seq.³ On each of these projects Miree paid certain sums⁴ into the Apprenticeship Plan of the Associated Builders and Contractors of Alabama, Inc. ("ABC plan").⁵ Miree took a credit for these sums against the prevailing wage it was obligated to pay its employees under the provisions of the Davis-Bacon Act.⁶

The Wage and Hour Division of the Department of Labor ("DOL") undertook an investigation of these payments to the ABC plan⁷ and, following this investigation, Miree's claimed credits were partially disallowed.⁸ Based on this partial disallowance, the DOL Administrator (the "Administrator") assigned to the investigation determined that Miree had underpaid its employees, and she advised the United States Army, the agency that had employed Miree, to withhold $11,208.00 that was due Miree.⁹

Miree disagreed with the Administrator's ruling, and asked that she reconsider her decision.¹⁰ The plaintiff offered the following stipulation of facts:

1. The apprentice program fund of Associated Builders and Contractors of Alabama ("ABC") is unified rather than divided by individual crafts.

2. The Department of Labor approved the ABC apprentice program that is unified rather than divided by craft.

3. Individual workers employed by Miree on the referenced jobs worked in more than one job classification.

4. All amounts deducted by Miree for apprenticeship contributions were actually paid to an approved apprenticeship program.

5. The Department of Labor allows credit for apprenticeship fund deductions by employers who are parties to a collective bargaining agreement which were made in accordance with the provisions of that agreement, regardless of whether those employers currently employ apprentices.

6. The Department of Labor gives full credit for apprenticeship contributions pursuant to a collective bargaining agreement regardless of whether the apprenticeship program funded by the agreement is currently in operation.

7. The Department of Labor gives full credit for apprenticeship fund contributions pursuant to a collective bargaining agreement, regardless of the actual cost to the apprenticeship program of training the deducting employer's employees.

8. The Department of Labor has approved deductions of $.25 or more per hour for apprenticeship funds, when those deductions are made pursuant to a bona fide collective bargaining agreement.

9. The tuition paid for attendance of the ABC apprentice training program is not sufficient to cover the cost of that program.

10. Funding for the ABC apprentice program comes primarily from services unrelated to government-funded work.

Defendants "Administration" responded as follows:

Stipulation One: We concur that the Alabama Chapter's Associated Builders and Contractors (ABC) apprenticeship plan covers a number of crafts rather than individual crafts, but the plan does not encompass the laborers' classification.

Stipulation Two: We are aware that the Bureau of Apprenticeship and Training (BAT), Department of Labor, approved the ABC Alabama apprenticeship plan.

Stipulation Three: We agree that some of Miree's employees worked in more than one craft classification.

Stipulation Four: We have no evidence that payments were not made to the ABC Alabama apprenticeship program during the time Miree worked on the cited contracts and we are not making any such allegation.

Stipulation Five: We concur.

Stipulation Six: We cannot comment because it is not clear what is meant by the terminology "currently in operation" in this proposed stipulation.

Stipulation Seven: The Department of Labor gives full credit for the amounts required to be contributed under a plan, based on the assumption that there exists a reasonable relationship between the amount of contributions on the one hand and the cost of providing training and administering the plan on the other hand. Under the Alabama Chapter's ABC plan, the amount of contributions required was, in fact, the amount charged to Miree for tuition to train individual apprentices.

Stipulation Eight: We concur but we believe this stipulation is irrelevant in this case.

Stipulation Nine: We lack the necessary information to determine whether the tuition paid by Miree for attendance at the ABC apprenticeship program is sufficient to cover the cost of that program. However, we have given the firm full credit for those costs for which evidence has been provided.

Stipulation Ten: We do not have sufficient information to comment on this stipulation, but we feel it is irrelevant to this case.

The Wage Appeals Board took no issue with plaintiff's suggested stipulations. On July 6, 1986, the Administrator reaffirmed her decision by issuing a statement in which she held that the payments in excess of the actual cost required to fund the ABC plan would not be creditable. Miree appealed this decision administratively to the Wage Appeals Board ("the Board").¹¹

The plurality decision issued by the Board, on February 17, 1989, affirmed the Administrator's ruling.¹² Miree has appealed to this court from this ruling by the Board.

Initially, this court must determine whether it has the authority to review the present decision of the DOL Wage Appeals Board. This court notes preliminarily that there is a strong presumption in favor of judicial review of administrative decisions under the Administrative Procedure Act (the "APA"), 5 U.S.C. §§ 551 et seq. See, Bowen v. Massachusetts, 487 U.S. 879, 108 S.Ct. 2722, 101 L.Ed.2d 749 (1988). The APA provides that there will be judicial review of administrative actions "except to the extent that — (1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law." 5 U.S.C. § 701(a).

In discussing the relationship of these two exceptions to the Davis-Bacon Act one court has held:

Under the Administrative Procedure Act, a statute is deemed to restrict access to judicial review "only upon a showing of `clear and convincing evidence' of ... legislative intent." Abbott Laboratories v. Gardner, 387 U.S. 136, 141, 87 S.Ct. 1507, 1511, 18 L.Ed.2d 681 (1967). The Davis-Bacon Act does not expressly preclude judicial review. Those portions of the legislative history which suggest a preclusion of review are addressed to review of wage determinations, not of agency decisions as to coverage of the Davis-Bacon Act.

....

Nor is the Wage Appeals Board's decision "committed to agency discretion by law." This "very narrow" exception to judicial review will be applied only "in those rare instances where `statutes are drawn in such broad terms that in a given case there is no law to apply.'" Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814, 821, 28 L.Ed.2d 136 (1971). The Davis-Bacon Act is not so broadly drawn as to commit the issue of its coverage to agency discretion. We conclude that the Wage Appeals Board decision as to the applicability of the Davis-Bacon Act is reviewable in accordance with the standards of the Administrative Procedure Act.

North Georgia Bldg. & Const. Trades Council v. Goldschmidt, 621 F.2d 697, 707-08 (5th Cir.1980).

Although a determination of the Board regarding a specific wage rate is not subject to judicial review, it appears that any determination concerning a broader policy question is subject to such review. See, Universities Research Ass's. Inc. v. Coutu, 450 U.S. 754, 101 S.Ct. 1451, 67 L.Ed.2d 662 (1981) (the Court held that there could be no judicial review of wage determinations made by the Secretary, but did not express an opinion on whether judicial review of other practices and procedures of the Secretary was proper); see also, North Georgia Bldg. & Const. Trades Council, supra.

Allowing a court to review administrative decisions, except those concerning wage determinations, made regarding the Davis-Bacon Act is also in keeping with the general policy of deferring to an agency in its field of expertise, see, Environmental Coalition of Broward County, Inc. v. Myers, 831 F.2d 984 (11th Cir.1987), but of giving no such deference to agency action when questions of law are involved, see, Pollgreen v. Morris, 770 F.2d 1536 reh'g denied 781 F.2d 905 (11th Cir.1985).

In discussing a situation involving a federal agency similar to the Wage Appeals Board, the United States Supreme Court has stated:

Like the National Labor Relations Board ... the FLRA Federal Labor Relations Authority was intended to develop specialized expertise in its field of labor relations and to use that expertise to give content to the principles and goals set forth in the Civil Service Reform Act.... Consequently, the Authority is entitled to considerable deference when it exercises its "special function of applying the general provisions of the Act to the complexities" of federal labor relations.

....

On the other hand, the "deference owed to an expert tribunal cannot be allowed to slip

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