10K
September 26, 1958
Mr. Dwight R. G. Palmer, Commissioner
State Highway Department
State of New Jersey
Trenton, New Jersey
Dear Mr. Palmer:
This is in further reference to your recent inquiries in
which you request on opinion, in accordance with Section 5.11 of
Regulations, Part 5 (29 CFR, Subtitle A), as to the applicability
of Section 115 of the Federal-Aid Highway Act of 1956 to truck
drivers engaged in certain operations. As was suggested, these
matters have been discussed with representatives of the Associated
General Contractors of New Jersey in order to obtain the views of
that organization with respect to coverage in this general area of
activity. In brief, the factual situations which have been pre-
sented are as follows:
1. Truck drivers employed by an established concrete sup-
plier deliver transit mix concrete to an interstate project in the
supplier's own trucks. The concrete is discharged between road
forms by the truck drivers and is spread and processed by employees
of the interstate project contractor.
2. Truck drivers employed by an established quarry sup-
plier deliver 2-1/2 inch stone to an interstate project in trucks
owned by the quarry supplier. The atone is spread, shaped and com-
pacted by employees of the interstate project contractor,
3. An interstate project contractor purchases blacktop
material from an established supplier at a price which includes
delivery to the site. The supplier contracts with a trucking firm
to make the deliveries; however, the material is spread and pro-
ceased by employees of the interstate project contractor.
A. An interstate project contractor purchases blacktop
material from an established producer at a price which includes
delivery and placing of the material at the project site with the
producer's equipment and personnel.





















Mr. Dwight R. G. Palmer Page 2
5, Truck drivers employed by an established material sup-
plier deliver to an interstate project stockpile, in trucks owned by
the supplier such materials as cement, steel, pipe and calcium chlo-
ride.
6. Truck drivers employed by an interstate project contrac-
tor haul material from a borrow pit to the job site in trucks owned
by the contractor.
7. Truck drivers employed by a trucking firm subcontractor
haul material from a borrow pit to the project site under a contract
with the interstate project contractor,
8, Material is hauled from a borrow pit to the job site by
individual truck owner-operators.
Section 115 of the Federal-Aid Highway Act of 1956 applies
the Davis-Bacon Act (40 U.S.C., Sec. 276-a) to the initial construc-
tion of the "National System of  Interstate Highways." It provides
that all laborers and mechanics employed by contractors and subcon-
tractors on the initial construction of projects on the Interstate
System shall be paid not less than the prevailing wages as deter-
mined by the Secretary of Labor in accordance with the Davis-Bacon
Act, as amended. Since the situations which have been presented re-
late only to the initial construction of interstate projects, it
would appear that the application of the Act involves only the follow-
ing considerations:
(a) Are the truck drivers laborers and mechanics within
the meaning of the Act?
(b) Are the truck drivers employed by contractors or
subcontractors as distinguished from materialmen?
In resolving these questions, it must be kept in mind that
the Davis-Bacon Act, as amended, and as-extended to the Federal-Aid
Highway Act of 1956, is remedial in nature and its provisions should
be liberally construed to effectuate its basic purposes. United
States v. Binghamton Construction Co., 347 U.S. 171, Gillioz v..Webb,
99 F. 2d 585, 33 Comp, Gen, 497, and the cases collected at 163 A.L.R.
1302.
The terms "laborers and mechanics" are not specifically de-
fined in the statutes under consideration. However, in answering




















Mr. Dwight R. G. Palmer    Page 3
a question involving the scope of these terms as used to the Eight
Hour Laws, the Attorney General in 39 Op, Atty. Gap, 232 (1939)
stated that, "In the administration of the statute the term 'la-
borers and mechanics ' has been given a somewhat broad meaning" and
"the inclusion or exclusion of particular employees presents a ques-
tion largely of fact, having regard to the actual duties of the em-	
ployees concerned xxx . It is, under all the circumstances, a
well-warranted assumption that the Congress intended the 8-hour law
to have a broad application and to be liberally construed with this
end in view." Like principles appear to be applicable to the deter-
mination of who are the "laborers and mechanics" for whom the Secre-
tary of Labor is required to determine wage rates under the Davis-
Bacon Act, as amended, and as extended to the Federal-Aid Highway
Act of 1956. Accordingly, these terms have consequently been con-
strued as including at least those workers whose duties are mainly
manual or physical in nature as distinguished from mental or mana-
gerial. Under such circumstances, there would appear to be no doubt
that truck drivers fall within the meaning of these terms.
You will note that in Section 5.2(g) of the enclosed Regu-
lations, Part 5, the terms "construction," "prosecution," "comple-
tion" or "repair mean P11 types of work done on a particular build-
ing or work at the site thereof including the transportation of ma-
terials and supplies to and from the building or work by the em-
ployees of the construction contractor or subcontractor. Regulations,
Part 5, as you know applies to the Davis-Bacon Act, as amended, and as
extended to the Federal-Aid Highway Act of 1956 and to similar stat-
utes. Also see 51 C.J.S. 475; McE1waine v. Hosey, 35 N.E. 272;
Matlock v. Sanderson & Porter (Ark. Cir. Ct., Jefferson Co., 1943)
7 Labor Cases 61,806; and 18 Comp. Gen. 337.
The courts have held that, when used in statutes pertaining
to the construction trades, the word "subcontractor" is to be given
the meaning by which it is generally understood in the construction
industry. Thus in MacEvoy v. United States 322 U.S. 102-(1944) a
case arising under the Miller Act, 40 U.S.C.A 270(a), the Supreme
Court stated that "under the more technical meaning as established
by usage in the building trades a subcontractor is one who performs
for and takes from the prime contractor a specific part of the labor
or material requirements of the original contract, thus excluding
ordinary laborers and materialmen." It should be noted that the
Davis-Bacon Act, as amended, provides that the ". . . Contractor or
his subcontractor shall pay all mechanics and laborers . . . at wage















Mr. Dwight R. G. Palmer     Page 4
rates not less than those stated in the advertised specifications,
regardless of any contractual relationship which may be alleged to
exist between the contractor or subcontractor and such 3aborers and
mechanics. . ."
In the MacEvoy case the court held that a firm which con-
tracted to furnish well-board building materials for use in a hous-
ing project was a materialman and not a subcontractor, since there
was no undertaking to perform a specific part of the original con-
tract. An opposite result was reached in Basich Bros, Const, Co.
v. United States, 159 F, 2d 182 (C.A. 9) (1946). In that case the
original contract provided for the performance of certain construc-
tion, and included in various items the specific rock, sand and
grave) requirements for the performance of the work. Another firm
contracted with the prime contractor to furnish the labor, supplies
and equipment to fulfill the requirements of these particular items
in accordance with the provisions and specifications of the original
contract and "under the direction and to the satisfaction of the
principal's engineer." The court concluded that the secondary con-
tractor had undertaken to perform a specific part of the require-
ments of the original contract, and was, therefore, a subcontractor
within the meaning of the MacEoy case. Also, in United States v.
John A, Johnson & Sons, 137 F. Supp, 562, a secondary contractor who
agreed to furnish "all millwork and related items as specified under
Section 18, carpentry as required by the contract drawings and in ac-
cordance with specifications, general conditions and amendments" of
the original contract was held to be a subcontractor rather than a
materialman. See also Holt & Bugbee Co. v. City of Melrose, 41 N.E.
2nd 562, 141 ALR 319; Avery v. Ionia county, 39 N.W. 742; G. G. Waugh
& Co. v. Rollison,192 S.E. 69 and Am. Jur. 47. It is interesting to
note that in 2 S. v. Landis and Yount, 16 Fed. Supp. 832, the court
held that a subcontractor for construction of a post office building
who agreed to do electrical work for a fixed price was entitled to
recover prevailing wages for work which he performed himself.
It is my opinion that the Act -is not applicable to the
truck drivers in situations 1, 2 and 5, since their employers were
regular suppliers who furnished standard materials for the work and
were not engaged in performing a portion of the original contract.
Furthermore, the drivers performed no work at the site except that
which was required for making normal deliveries.
Situation 4 is to be distinguished from the foregoing in
that the supplier undertook to perform a part of the labor require-
ments of the contact, that is, placing the blacktop material to














Mr. Dwight R. G. Palmer      Page 5
produce a finished product. Employees who were engaged in such ac-
tivities performed an essential part of the construction work re-
quired by the original contract and were, therefore, entitled to the
benefits of the Act. The A$% would also apply to a supplier's em-
playees who spread materials on the road, by truck or by other means.
It is to be noted, however that only those employees who perform
covered work are within the purview of the Act. Thus, if in this
situation the truck drivers did not engage in placing the materials
or in other construction work at the jobsite but confined their ac-
tivities to those normally required for making deliveries the Act
would not apply to them.
In situation 3, the supplier contracted with a trucking
firm to make the deliveries. However, the fact that employees of
such a contractor hauled the material on behalf of the supplier
does not alter the purpose for which such work was performed, that
is, to effectuate the sale. Therefore, since the deliveries were
made for the supplier they continued to be incidental to the sale
of the material rather than to the construction of the road just as
if the deliverymen had been employed directly by the supplier. Thus
if the truck drivers in this situation performed ho work at the job
site other than that normally required for making the deliveries,
the Act would not apply to them.
Situations 3 and 7 are similar except that in the latter
the project contractor rather than the materialman contracted with
the trucking firm-to do the hauling. Since, in effect, the sub-
contractor agreed to take from the contractor a specific part of
the labor requirements of the original contract, he was a subcon-
tractor within the meaning of the Act and the truck driven em-
played by him were covered.
In situation 6, the truck drivers were employed by the
project contractor. Since the Act specifically applies to laborers
and mechanics employed by contractors engaged in the initial con-
struction, the truck drivers would be covered. The fact that the
trucks were owned ,by the contractor is immaterial.
I have attached a recent letter to the General Counsel of
the Bureau of Public Roads regarding situation 8, which I believe
you will find self-explanatory.
The above comments are based on the facts stated in your
letter and may not be applicable to an altered factual situation.

















Mr. Dwight R. G.  Palmer    Page 6
In this connection, the answers to situations 1, 2, 3 and 5 are based
on the assumption that the established supplier is not engaged exclu-
sively in the servicing of an interstate project (See attached letter
to Mr. Malcolm ?.McGregor).
If you have any further questions, please do not hesitate to
write me.
Very truly yours,
Stuart Rothman
Solicitor of Labor
By
James R. Beaird
Acting Assistant Solicitor
Enclosures