
    (348 F. 2d 533)
    NELLO L. TEER COMPANY v. THE UNITED STATES
    [No. 274-59.
    Decided July 16, 1965.
    Plaintiff’s motion for reconsideration denied October 15, 1965]
    
    
      
      Paul M. Rhodes for plaintiff. Joseph O. Wells, attorney of record, and Lawrence T. Zimmerman of counsel.
    ' James F. Merow, with wliom was Assistant Attorney General J ohm W. Douglas for defendant.
    
      Before CoweN, OJdef Judge, Laramobe, Dukfee and Davis, Judges, and Whitakek, Senior Judge.
    
    
      
       Plaintiff's petition for writ of certiorari denied March 7, 1966, 383 U.S. 934.
    
   Dtjkfeb, Judge,

delivered tbe opinion of tbe court:

This action is maintained by a successful contractor of a reservoir project. Tbe dispute involves tbe determination of tbe question of whether or not plaintiff was rightfully required to pay rates of wages to power equipment operators under a wage determination by tbe Department of Labor, that were higher than tbe wage rates plaintiff believed should be paid.

Tbe contract out of which this suit arose was made with tbe United States Army Corps of Engineers and was awarded to plaintiff as lowest bidder on April 26, 1957. It called for tbe construction of an embankment and spillway, and for tbe completion of outlet works for tbe Bear Creek Reservoir, Lehigh River, Carbon and Luzerne Counties, Pennsylvania.

Tbe following brief history of union and bargaining activity and construction work in this geographical area, prior to tbe date of tbe contract, blends in with this controversy.

Prior to tbe award of tbe contract, two labor unions representing power equipment operators were active in that portion of Pennsylvania which includes Carbon and Luzerne Counties. One of these was an industrial union affiliated with the United Mine Workers, and will be referred to as District 50. The other was a craft union affiliated with the American Federation of Labor, and will be referred to as the AFL Operating Engineers.

Historically, there were three types of construction in the area represented by these unions, “Building Construction,” “Highway Construction” and “Heavy Construction.” “Building Construction” concerned the erection of shelters and included virtually every kind of a structure having a roof over it. “Highway Construction” concerned the building of roads and highways, including grading and more extensive earth moving, and the installation of drains, culverts and bridges. “Heavy Construction” concerned large earthmoving and concrete or concrete and steel installations, such as dams (including embankments and spillways), airports and other large undertakings not related to the other two categories.

By 1956-1957 the AFL Operating Engineers Union had imade some headway in an effort to equate wage rates for Heavy Construction with wage rates for the traditionally higher Building Construction. However, the union had not blanketed the Carbon and Luzerne Counties area with the higher rate. District 50, the United Mine Workers affiliate union, confined itself to the fields of Heavy Construction and Highway Construction. For these two categories, District ■50’s rates for power equipment operators were identical and were comparable to the AFL Operating Engineers’ rates for Highway Construction.

It was the predominant practice in the two county area to pay workmen, including power equipment operators employed in Heavy Construction, and those engaged in Highway Construction, wages according to the wage scale established by the AFL for Highway Construction, and the scale established by District 50 for Heavy and Highway •Construction. There was, however, a dam project in the area where power equipment operators were paid the higher AFL rates for Building 'and Heavy Construction. This project was the first Bear Creek contract for the outlet works which was awarded in 1956 to the Gasparini Construction Company, an AFL contractor.

With this background in mind we turn to the facts of this ■controversy. On January 11, 1957, the Corps of Engineers requested the Department of Labor to make a “determination of the wage rates to be paid laborers and mechanics” on the construction at Bear Creek for the “entire schedule” of crafts in contemplation of the invitation for bids on the contract in suit. This was in accordance with the Davis-Bacon Act, 40 U.S.C. § 276(a) (1952 ed.) which required the payment of wages “* * * computed at * * * rates not less than those stated in the advertised specifications * * *” as having been “* * * determined by the Secretary of Labor to be prevailing * * * on projects of a character similar to the contract work in the city, town, village, or other civil subdivision of the State * * The Department of Labor responded on January IT, 195T, with Wage Decision No. R-10,416. The invitation for bids on the contract was issued on March 1, 195T by the Corps of Engineers. Wage Decision No..R-10,416 was incorporated as part of Paragraph SC-lT of the Special Conditions.

On March 6, 195T, the Corps of Engineers requested the Department of Labor to make another wage determination for the project. In the request, the Corps of Engineers certified to the Department of Labor that no highway type work requiring the use of power equipment would be involved. This certification was in error, as in actuality a minor portion (4 percent) of the project work was highway-type construction. The Department of Labor responded on March 11, 195T, with Wage Decision No. R-13,689. On March 18, 1957, the Corps of Engineers issued Addendum No. 1 to the invitation for bids, substituting Wage Decision No. R-13,689 for Wage Decision No. R-10,416, and directing bidders to acknowledge its receipt prior to opening of bids.

The similarities and differences of these two wage decisions pertinent to the problem in the case at bar are as follows: (a) Both had sections under the heading “Heavy and Highway Construction.” Neither decision listed power equipment operators under this heading; (b) Both had sections entitled “Building and Heavy Construction,” under which was listed “power equipment operators” followed by 35 separate crafts. These sections were identical; (c) A section of the first decision, Decision No. R-10,416, carried the heading “Highway Construction” under which was listed “power equipment operators” followed by 27 crafts. Decision No. Sr-13,689 omitted this section; (d) Tbe rates for power equipment operators under “Highway Construction” in Decision No. R-10,416 were lower than rates for power equipment operators listed under “Building and Heavy Construction.”

Prior to submitting its bid plaintiff’s president and engineers inspected the work site and made an inspection of working conditions, labor practices and prevailing wages. They reasonably concluded that power equipment operators engaged in the type of work called for in the project, “Heavy Construction” work, were to be paid a rate of wages lower than the scale of wages sometimes paid to the same operators when engaged in the Heavy Construction work incidental to Building Construction. Plaintiff’s bid was prepared on the basis of the foregoing. The bid was submitted on April 9,1957. At the appropriate place therein, plaintiff acknowledged receipt of Addendum No. 1. The contract was awarded to plaintiff on April 26. On April 30, plaintiff entered into a contract with District 50, establishing wage rates for power equipment operators identical with the rates for “Heavy and Highway Construction” then in force through the master contract between the union and Associated Pennsylvania Constructors (see footnote 1).

Thereafter, the controversy arose. Plaintiff maintained that the applicable class of power equipment operators had been omitted from Wage Decision No. R-13,689. Plaintiff contended that the power equipment operators should be paid under the heading “Heavy and Highway Construction.” Plaintiff made a request for authorization of additional classifications and rates, as contemplated by sub-paragraph (b) of Paragraph SC-17 of the Special Conditions. (see footnote 2). The contracting officer denied the request by letter of May 23, 1957, stating that plaintiff was in effect requesting a reduction in the applicable minimum rates, rather than additional classifications.

3 The parties are agreed tliat tile work required by the contract in suit was “Heavy Construction.”

4 As will be remembered, neither the first nor second wage decision had any power equipment operators listed under that heading.

Plaintiff replied to the contracting officer, stating that it had assumed, in accordance with the general practices of the industry, that the applicable rates would be those under “‘Heavy and Highway!” and not “Building and Heavy.” Plaintiff, therefore, believed there was an omission as contemplated by Paragraph SC-17(b) of the Special Conditions. The contracting officer rejected the argument, and directed plaintiff to pay the power equipment operators the rates listed under the heading “Building and Heavy Construction.” Plaintiff was advised that if it continued to disagree, the question would be submitted to the Secretary of Labor for final determination in accordance with Paragraph SC-17 (b) of the contract. Plaintiff then replied to the contracting officer that it continued to disagree, and further, that Paragraph SC-17 (b) was not applicable to the dispute at hand, the dispute being whether or not there was an omission from the Wage Decision of the wages to be paid the power equipment operators. It was plaintiff’s initial position that Paragraph SC-17 (b) would be applicable only if both parties agreed there was no determination of the minimum wages included in the Wage Decision. Plaintiff maintained this dispute was subject to the general disputes provision of the contract, and therefore, appealable to the Corps of Engineers and not the Secretary of Labor. Plaintiff therefore appealed the decision to the Chief of Engineers.

The contracting officer then wrote the Chief of Engineers recommending that the dispute be processed under the provisions of Paragraph SC-17 (b) of the contract and Paragraph 5.6(c) of the Begulations, Part 5, and final determination be made by the Secretary of Labor. Plaintiff vigorously objected to this recommendation.

The Office of the Chief of Engineers forwarded the question to the Solicitor of Labor. The letter of July 30, 1957 read as follows:

A question has arisen * * * whether the Department of Labor Decision No. B.-13,689 contains the classification and wage rates which were the subject of the contractor’s request for additional classifications.
Although this is not a question as to the proper classification or rates to be considered in accordance with SO-17 of the contract and Section 5.6' (c) of Regulations, Part 5, the enclosed material is being referred to your office for a ruling or an interpretation to Section 5.11 of Regulations, Part 5.

By letter of August 26, 1957, the Solicitor of Labor concurred hi the contracting officer’s decision of May 23, 1957. Plaintiff was then directed by the contracting officer to pay the higher rates, i.e., the rates for power equipment operators listed under the heading “Building and Heavy Construction.”

Plaintiff then appealed to the Chief of Engineers. The Corps of Engineers Claims and Appeals Board dismissed the case on the ground that the dispute in question was solely within the province of the Secretary of Labor.

Plaintiff has made full restitution to the employees whose wages had been computed at the lower union contract rates for “Highway and Heavy Construction” rather than at the minimum rates set forth in Wage Decision No. R-13, 689 for “Building and Heavy Construction.” Plaintiff now seeks recovery of the difference between the wages actually paid by it to its power equipment operators and the lower wages it would have paid these employees if it had been permitted to apply the rates it agreed to pay the union.

The question before us — the ultimate issue in the case— is whether or not the Secretary of Labor made a determination of the rates to be paid to power equipment operators under the contract. We believe that there was such a determination; that it was embodied in Wage Decision Rr-13, 689' which was made a part of the contract; that under United States v. Binghamton Construction Co., 347 U.S. 171 (1954), we cannot review the correctness of the determination, and therefore that plaintiff was rightfully required to pay the operators the rates listed under the heading “Building and Heavy Construction.”

Plaintiff contends the power and equipment operators were engaged in “Heavy and Highway Construction” or in “Highway Construction,” (the two being identical for wage purposes according to plaintiff), as those terms were understood at the locale of the work at the time of the bidding. Plaintiff therefore emphasizes the fact that the Corps of Engineers erroneously certified to the Department of Labor in requesting the second wage decision that no highway work requiring the uso of power equipment would be used. As a result of the certification, the heading “Highway Construction,” (which contained rates for power equipment operators) was deleted from the second wage decision. Plaintiff concludes that since thei’e was no classification of power operators under the heading “Heavy and Highway Construction” in the second wage decision, and since the heading “Highway Construction” which contained a classification for power operators had been deleted, then there was an omission of power operators under the second wage decision.

While this argument seems plausible at first glance, it must be remembered that even though the terms “Highway Construction” and “Heavy Construction” were more nearly synonymous in labor parlance in the two-county area than the terms “Heavy Construction” and “Building Construction,” the fact remains that plaintiff consistently took the position that the omission occurred under the heading “Heavy and Highway Construction.” Plaintiff never attacked the propriety of deleting the “Highway Construction” heading which contained a listing for the power equipment workers. It is true that under plaintiff’s union contract, the District 50 rates for power operators were the same for both “Highway” and “Heavy,” and that it was the predominant practice in the area to pay the lower scale to power equipment operators. However, these facts should not obfuscate the fact that in neither the first nor second wage decision was there any classification for power equipment operators under the heading “Heavy and Highway Construction.” Plaintiff has not contended that the deleted “Highway” rates were the rates that should have been paid the operators under the contract. The rates plaintiff sought to apply, — the union rates, — were similar to the deleted “Highway” rates contained in the first wage decision, but were not identical. We therefore fail to see how the omission of the heading “Highway Construction,” even though erroneously made, affects plaintiff’s contention that there was an omission of power equipment operators under the heading “Heavy and Highway Construction” in the second wage decision.

Our belief that there was a determination of rates for power equipment operators by the Secretary of Labor is predicated upon our belief that the resolution of the dispute involved was within the realm of power given to the Secretary of Labor to settle wage disputes of this kind pertaining, to his pre-contract wage decision. Paragraph SC-17 (b) of the contract (see footnote 2) describes the applicable procedure for the resolution of such a dispute. Plaintiff contends that Paragraph SC-1'7 (b) is applicable only when the “interested parties” are wnable to agree there was an omission. According to plaintiff, the “interested parties” mean only the contractor and laborers. In other words, plaintiff reasons that Paragraph SC-17 (b) comes into play only when the contractor and laborers cannot agree on a proper classification. Plaintiff says that here the contractor and the laborers were in agreement, as evidenced by the labor contract, and therefore defendant breached the contract by submitting the question of omission to the Secretary of Labor for final determination under Paragraph SC-17 (b) of the contract.

We find plaintiff’s construction of the term “interested parties” indeed a strained one. Plaintiff has cited us no authority for the proposition that an interested party in a Government contract does not include the Government. We cannot think of any situation where the Government would not be an interested party in one of its contracts. Further, plaintiff did not interpret “interested parties” in this manner in its objections to the contracting officer’s ruling. At that stage of the proceedings plaintiff seemed to recognize the fact that the Government was an interested party. We therefore conclude that “interested parties” means the Government and the contractor, as applied to the facts in this case, and shall confine our discussion of Paragraph SC-17 (b) to these parties.

Plaintiff’s alternative argument on the construction of Paragraph SC-17 (b) — the position taken before the contracting officer and the Corps of Engineers Claims and Appeals Board — will now be considered — plaintiff having. failed to persuade us to adopt its interpretation of “m-terested parties" Plaintiff took the position before the contracting officer and the Board that when there can be no agreement on the question of whether or not there was an omission from the wage decision, a dispute resolvable only under the disputes clause of the contract has arisen. Such a dispute would be appealable to the Chief of Engineers and not the Secretary of Labor. Plaintiff therefore maintained that the contract was breached when the contracting officer-submitted the question of omission from the wage decision, to the Secretary of Labor for final determination. We disagree with plaintiff. We do not believe there is a condition precedent, i.e., an agreement that an omission actually exists, attached to final resolution of wage disputes by the Secretary of Labor under Paragraph SC-17(b) of the contract. In other words, we believe that the Secretary of Labor had the power not only to finally decide the proper classification for omitted classes, but also the power to decide whether or not a class had been omitted. The Corps of Engineers Claims and Appeals Board was of the same opinion. (See finding 22). This approach is more than practical; it is one of common sense. If a person or a body has the authority to make a decision, who is in a better position to know whether the decision was made than that person or body ? Plaintiff must therefore shoulder the burden to prove, or at least present some evidence that such a decision was not made. Since plaintiff has not done so in this case, we defer to the. Secretary’s ruling that the determination of rates for power equipment workers was included in the second wage decision.' Since the correctness of the wage determination is not subject to judicial review, United States v. Binghamton Construction Co., 347 U.S. 171 (1954), plaintiff is not entitled to, recover.

The pertinent statutes and regulations support our interpretation of Paragraph SC-17 (b) of the contract. With respect to the Davis-Bacon Act, Reorganization Plan No. 14 of 1950 [64 Stat. 1267 (1950); 5 U.S.C. § 133z-15 note (1958 ed.)] required that the Secretary of Labor at. t * siian prescribe appropriate standards, regulations, and procedures, which shall be observed by these agencies, and cause to be made by the Department of Labor such investigations, with respect to compliance with and enforcement of such labor standards, as he deems desirable, * *

As a result of the foregoing, the following Regulation was issued by the Secretary of Labor; 16 F.R. 4431-4432 (1951), [also contained in 29 CFR § 5.6 (1964 ed.)] :

(c) Under the Davis-Bacon Act the contracting officer shall require that any class of laborers and mechanics not listed in the Secretary’s decision, which will be employed on the contract, shall be classified or reclassified by the contractor or subcontractor conformably to the Secretary’s decision and a report of the administrative action taken in such cases shall be transmitted by the agency to the Secretary of Labor. In the event the interested parties cannot agree on the proper classification or reclassification of a particular class of laborers and mechanics to be used, the question, accompanied by the recommendation of the contracting officer, shall be referred to the Secretary of Labor for final determination. * * *

The similarity between this regulation and Paragraph SC-17 (b) of the contract is quite obvious. Paragraph SC-17 (b) is almost a verbatim recital of the Regulation.

The other pertinent Regulation, § 5.11, contained in the same part as § 5.6, is an all-encompassing one and reads as follows: [16 F.R. 4432 (1951) [also contained in 29 CFR §5.11 (1964) ed.)]]

All questions arising in any agency relating to the application and interpretation of the regulations contained in this part and of the Davis-Bacon Act, * * * shall be referred to the Secretary of Labor for appropriate ruling or interpretation. The rulings and interpretations of the Secretary shall be authoritative * * *.

Thus, the interpretation of any regulation contained “in .this part” [emphasis supplied] shall be referred to the Secretary of Labor for final ruling or interpretation. Therefore, § 5.6 of the Regulations promulgated by the Secretary is subject to interpretation or ruling by the Secretary. As •we have shown, § 5.6 is the basis or authority for insertion of Paragraph SC-17 (b) in the contract. An interpretation of § 5.6 would, therefore, be an interpretation of Paragraph .SC-17 (b), and within the power of the Secretary specifically .under § 5.11.

It was specifically under § 5.11 that the problem at hand was forwarded by the Chief of Engineers to the Secretary, {see finding 20(d)], and under which the Secretary rendered .a decision agreeing with the contracting officer.

Plaintiff has made much of the fact that the Chief of Engineers stated in the letter to the Secretary that this was not a question of the “* * * proper classification of rates to be considered in accordance with SC-17 of the contract .and Section 5.6(c) of the Regulations, Part 5 * * *.” Obviously, the Chief of Engineers (whose opinion was merely .advisory, he having no authority to decide the problem), was partially mistaken in his interpretation of the law. In any event, the Chief of Engineers was correct in forwarding the problem to the Secretary under § 5.11, and the decision of the Secretary under § 5.11 was final. We so hold. Accordingly, plaintiff’s petition is dismissed.

CoweN, Chief Judge, concurs in the result.

Whitaker, Senior Judge,

dissenting:

In the locality where the work called for in the contract on this case was to be done, there were two labor unions who employed operators of power equipment, the American Federation of Labor and the United Mine Workers. The American Federation of Labor employed them either on work which it denominated “Building and Heavy Construction” •or on “Highway Construction.” The United Mine Workers employed them either on what it called “Heavy and Highway •Construction” or on “Highway Construction.” Operators ■belonging to the American Federation of Labor engaged in “Building and Heavy Construction” received higher wages than those engaged in “Highway Construction.” However, operators belonging to United Mine Workers received the same wages whether employed in “Heavy and Highway Construction” or in only “Highway Construction.”

The work called for by the contract in this case was classified by the American Federation of Labor as “Building and Heavy Construction,” but, by the United Mine Workers, as “Heavy and Highway Construction.”

When the Secretary of Labor issued his original determination, he fixed the wages for these operators engaged in “Building and Heavy Construction” and in “Highway Construction,” but not for “Heavy and Highway Construction.” He fixed the wages for a number of the crafts and laborers engaged in “Heavy and Highway Construction,” but omitted operators of power equipment, although they were necessarily employed in such work; it could not be done without them.

His second determination omitted “Highway Construction” altogether, because of the erroneous information given him that no highway construction was involved. Nor did he fix the wages for these operators engaged in “Heavy and Highway Construction.”

On account of this omission, the contractor agreed with the union on the wages to be paid them, as he was authorized to do under section 17 (b) of the Special Conditions, quoted in footnote 2 of the majority opinion. The contracting officer refused to approve this contract.

There was no justification for this. The reason his approval of such a contract was required- was not stated, but it could only have been to insure that workers on the contract were paid the prevailing wages. There is no doubt that the wages stipulated in the contract were the prevailing wages being paid operators engaged in “Heavy and Highway Construction,” if they belonged to the United MineWorkers Union, but not for American Federation of Labor operators. But the findings show that on all but one of the projects similar to the one here involved, operators belonging to the United Mine Workers were being employed and were being paid its scale of wages. On only one small project of a similar nature were American Federation of Labor-operators being paid tire scale for such operators engaged in “Building and Heavy Construction.”

The contracting ©Seer was; therefore; wlfeeufc authority t© disapprove the eentraet -pla-in-tiffi had made with the union. it fellews that the Chief ©f Engineers sheuld have reversed the eentraeting effieer and shenld have approved the een-traetj instead, he referred the matter fe the Secretary ©f Eaber; Thin was net in aee©rd with the eentraet: Soetien H^b}- ©f the Speeial Ce-mhtiens gave the eentraeter the right t© enter int© a e©ntraet f©r wages t© he paid meehnnies emitted frena the determination ef the Secretary ©f Labor. Operators ©f pewer equipment were emitted frem “Heavy and Highway Construction^ whieh was the sort ©f werfe oallod fer hy tía© eentraet: Henee; the duty ef the eentraeting effiee? and the Chief ef Engineers was eelely te determine whether the eentraet eaSed fer the payment ©f wages helew these prevailing in the eemmunity: His reference ef fee matter te fee Seeretary ef Eaher was unauthorized and eee-ferred en feat effieial ne power te approve er disapprove fee eentraet; and his decision-,■ therefore; is a nudity:

H; hewever; it was wifein fee previnee ef fee Chief ef Engineers t© refer fee matter te fee Seeretary ef Eaher fer decision,- I; nevertheless; feinfe feat fee Seeretary- ef Ea-ber’-s determination disregarded fee faets and was based net en what actually were fee prevailing wages hut npen what he thought fee prevailing wages eught t© be:

There was, therefore, no justification for the contracting officer to disapprove fee contract plaintiff had made with the union. It follows that the Chief of Engineers should have reversed the contracting officer and should have approved the contract. Instead, he referred the matter to the Secretary of Labor. If there was any doubt in his mind about the wages fixed in the contract being in accord with the prevailing wages, this was the proper procedure; but I do not see how there could have been any doubt in his mind about this. But since the Secretary of Labor was the person to determine the prevailing wages, I doubt if I would be justified in saying that the Chief of Engineers was without authority to refer the matter to the Secretary of Labor. I, nevertheless, think that the Secretary of Labor’s determination disregarded the facts and was based not on what actually were the prevailing wages but upon what he thought the prevailing wages ought to be. He had no right to classify operators of power equipment engaged in work similar to the contract work as operators engaged in “Building and Heavy Construction” since, on the large majority of the work being done in this locality, operators of power equipment on similar projects were employed under the United Mine Workers’ scale applicable to operators employed on “Heavy and Highway Construction.” There was only one small contract in this locality on which these operators were paid the wages specified for them under “Building and Heavy Construction.” To have singled out this one small contract for less than a million dollars as establishing the prevailing wages, and to have ignored the others on which many times as many contractors were involved and which involved many millions of dollars, was arbitrary and capricious. “Prevailing” means, “most frequent,” “generally current.”

Is such a decision final and conclusive? The majority says it was, under the decision of the Supreme Court in United States v. Binghamton Construction Co., 347 U.S. 171 (1954). In that case the Supreme Court did say that the decision of the Secretary of Labor was not subject to judicial review, but this was not necessary to a decision of the case. It was said only in passing. The issue in the case was whether or not the contractor had a right to rely upon the determination of the Secretary of Labor that the wages fixed by him were the prevailing wages. No question was raised about the finality of the Secretary’s determination. The only issue was whether or not it constituted a representation upon which the contractor had a right to rely.

The Supreme Court did not elaborate its statement that his decision was final. It merely made the statement and then passed on to a discussion of issue in the case. It did not say that his decision was final under any and all circumstances ; nor do I think it meant to say so. Did it mean to say that his decision was final if it was fraudulent? Did it mean to say that it was final if it was so grossly erroneous as to imply bad faith ? Did it mean to say that it was final if it was purely arbitrary and capricious and in plain disregard of the actual facts?

This court and the Supreme Court have been continually faced with the provision in Government contracts that .the decision of the contracting officer on a dispute about any matter arising under a Government contract was “final and conclusive.” In cases too numerous to mention, we had held that any decision of the contracting officer which was arbitrary or capricious or not supported by substantial evidence could be reviewed by the court and, if found so to be, it could be set aside. Finally, however, the Supreme Court in United States v. Wunderlich, 342 U.S. 98 (1951), said that the decision of the contracting officer could not be set aside unless it was fraudulent, by that meaning that the contracting officer had been guilty of conscious wrongdoing. After this decision, Congress passed what was known as the Wunder-lich Act, 68 Stat. 81 (1954), 41 U.S.C. §§321-322 (1958). That Act provided that, notwithstanding the provision in Government contracts that the decision of the contracting officer was final and conclusive, it could be reviewed by the courts if fraudulent or so grossly erroneous as to imply bad faith or if arbitrary or capricious or not supported by substantial evidence.

Could the Congress have intended to give any more finality to the decision of the Secretary of Labor than to that of a contracting officer whose decision was expressly made final and conclusive, whereas there is nothing in the Davis-Bacon Act, 40 U.S.C. § 276(a) (1952 ed.), that says that the decision of the Secretary of Labor shall be final and conclusive?

Of course, there was some evidence to support the decision of the Secretary of Labor, but the Supreme Court has said that in determining whether or not there was substantial evidence to support a finding, the entire evidence must be considered. Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474 (1950). When the entire evidence in this case is considered, as the findings show, there can be no question that the prevailing wage in this community was not that specified for the operators of power equipment under the classification of “Building and Heavy Construction” but rather that prevailing'for them under the classification of “Heavy and Highway Construction,” which was the same as that under “Highway Construction.”

Therefore, even if the Chief of Engineers had the right to refer this question to the Secretary of Labor, I still think that we are not bound by his decision since it was not supported by substantial evidence when the evidence is considered in its entirety and not merely one isolated piece of evidence.

As a result of this decision, this contractor has been required to pay many thousands of dollars more than he was due to pay had the operators of this power equipment been properly classified under “Heavy and Highway Construction” rather than under “Building and Heavy Construction.”

For these reasons I respectfully dissent.

FINDINGS OF FACT

The court, having considered the evidence, the report of Trial Commissioner W. Ney Evans, and the briefs and argument of counsel, makes findings of fact as follows:

The Parties

1. (a) Plaintiff is a Delaware corporation with its main office in Durham, North Carolina. For many years it has been engaged in the construction of roads, highways, dams, airports, and similar proj ects. It has never engaged in building construction.

(b) The contract out of which this suit arose was made with the United States Army Corps of Engineers, and involved two determinations of prevailing wages by the Secretary of Labor.

Contract: Project

.2. (a) The contract in suit was awarded to plaintiff, as the lowest bidder, on April 26,1957. It called for the construction of an embankment and spillway, and for the completion of outlet works for the Bear Creek Reservoir, Lehigh River, Carbon, and .Luzerne Counties, Pennsylvania.

(b) Another contract, for part of the outlet works, had been awarded, approximately 1 year earlier than the contract in suit, to the Grasparini Excavating Company. Work on this contract was underway at the time the Secretary of Labor made his determinations of prevailing wages for the contract in suit.

Prevailing Wage Requirement

3. (a) The Davis-Bacon Act requires the payment of wages “computed at * * * rates not less than those stated in the advertised specifications” as 'having been “determined by the Secretary of Labor to be prevailing * * * on projects of a character similar to the contract work in the city, town, village, or other civil subdivision of the State * * [Emphasis supplied.]

(b) Article 20 of the General Provisions of Construction Contracts required the payment of wages at “rates not less than those contained in the wage determination decision of the Secretary of Labor which is attached hereto and made a part hereof * *

(c) Paragraph SC-17 of the Special Conditions of the contract provided as follows:

SC-17 RATES OE WAGES:
(a) The minimum wages to be paid laborers and mechanics on this project, as 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 pertinent locality, are as set forth below.
(b) Any class of laborers and mechanics not listed below employed on this contract shall be classified or reclassified conformably to the schedule set out below by mutual agreement between the contractor and class of labor concerned, subject to the prior approval of the Contracting Officer. In the event the interested parties cannot agree on the proper classification or reclassification of a particular class of laborers and mechanics to be used, the question, accompanies [sic] by the recommendation of the Contracting Officer, shall be referred to the Secretary of Labor for final determination.

Prevailing Wage Determinations

4. (a) The contract requirements which were attached to the invitation for bids as originally issued contained Department of Labor Wage Decision No. E-10,416, dated January 17, 1957. A copy of this wage decision appears in the Appendix hereto as Exhibit A.

(b) Prior to bid opening, a new wage rate determination, Department of Labor Wage Decision No. E-13,689, dated March 11,1957, was distributed to all prospective bidders as Addendum No. 1 (dated March 18, 1957) to the previously issued contract specifications and as a replacement for the original wage rate decision. In submitting its bid, plaintiff acknowledged receipt of Addendum No. 1. A copy of Wage Decision No. E-13,689 appears in the Appendix hereto as Exhibit B.

(c) The similarities and differences between the two wage decisions, insofar as material to this action, were as follows:

Decision No. E-10,416 listed, in its opening section, only carpenters and carpenters’ apprentices in Carbon County.

Decision No. E-13,689, likewise limited its opening section to Carbon County, but listed 15 kinds of laborers and mechanics in addition to carpenters.

The second section of Decision No. E-10,416 listed 70 kinds of laborers and mechanics, without mention of the county. The third section of Decision No. E-13,689 was identical to the second section of the earlier decision.

The second section of Decision No. K-13,689 contained an apprentice schedule for Luzerne County, listing 12 crafts. The same 12 crafts were listed in the third section of Decision No. K-10,416, but without limitation to Luzerne County.

The fourth section of Decision No. K-10,416 carried the heading “Heavy and Highway Construction,” under which was a listing of carpenters and 13 categories of laborers. There was no specification of county. A fifth section of this decision carried the heading “Free Air Tunnels and Kock Shafts,” under which were listed 12 crafts.

The fifth section of Decision No. K-13,689 carried the heading “ Heavy and Highway Construction,” under which were listed the same crafts as were in section four of the earlier decision. The heading “Free Air Tunnels and Kock Shafts” was then subordinated to “Heavy and Highway Construction” in the fifth section of Decision No. K-13,689, while the listing of crafts under the subheading remained the same.

The sixth section of Decision No. K-10,416 carried the heading “Building and Heavy Construction,” under which was listed “Power equipment operators” followed by 35 separate crafts. The fourth section of Decision No. Kr-13,689 was identical to the sixth section of the earlier decision.

The seventh section of Decision No. K-10,416 carried the heading “Highway Construction,” under which was listed “Power equipment operators” followed by 27 crafts. Decision No. R-13,689 omitted this section altogether.

(d) No point has been made in this case as to the specification or lack of specification of a particular county. Both decisions were made applicable to the project and contract in suit and applied to Carbon and Luzerne Counties.

(e) No point has been made in this case as to the listing of crafts, except as to listings under power equipment operators. It is to be noted (1) that neither decision listed power equipment operators under the heading “Heavy and Highway Construction”; (2) that the rates for power equipment operators listed under “Highway Construction” in Decision No. K-10,416 were (a) lower than the rates for power equipment operators listed under “Building and Heavy Construction” and (5) quite similar, but not identical, to the rates contained in plaintiff’s union contract.

Basis of Suit

5.(a) Plaintiff was required to pay, and did pay, to its power equipment operators employed on the project, the wages established by Wage Decision No. R-13,689 for power equipment operators in “Building and Heavy Construction.”

(b) Plaintiff now sues for the difference between the wages actually paid to its power equipment operators and the lower wages it would have paid if the contracting officer had recognized such power equipment operators as having been engaged in “Pleavy and Highway Construction” or in “Highway Construction.”

The Issue

6. (a) The accuracy of the determinations by the Secretary of Labor of prevailing wages for power equipment operators, whether listed under “Building and Heavy Construction”- or under “Highway Construction,” is not challenged.

(b) Plaintiff’s challenge is directed to the applicability of the “Building and Heavy Construction” category to the contract work. Plaintiff contends that its power equipment operators were engaged in “Heavy and Highway Construction” or in “Highway Construction” (the two being identical for wage purposes, according to plaintiff) as those terms were used and understood at the locale of the work at the time of bidding; and that, since the applicable decision (No. R-13,689) contained no listing of power equipment operators under either of these categories, there was an omission of pertinent crafts which the contracting officer should have recognized.

Locale: Unions

7. (a) The State of Pennsylvania has as its eastern boundary the Delaware River. Seven of the State’s 67 counties border on the Delaware River, from north to south. West of this first tier of counties is a second tier which includes Carbon and Luzerne Counties, midway, from north to south.

(b) At times material to this action, two labor unions representing power equipment operators were active in that portion of Pennsylvania which includes Carbon and Luzerne Counties. One was the United Construction Workers, Division of District 50, affiliated with the United Mine Workers. It is hereinafter referred to as District 50. The other union was Local 542 of the International Union of Operating Engineers, affiliated with the American Federation of Labor. It is hereinafter referred to as the AFL Operating Engineers.

(c) Each of these unions recognized the division of the State of Pennsylvania into regions or districts, marking geographical areas of their several jurisdictions.

District 50 began with the State of Pennsylvania as a geographic entity and divided it into 7 groups of counties. Carbon and Luzerne Counties were in Group 7, which covered 44 counties, an area which included all of the 29-county area of the AFL Operating Engineers as hereinafter described.

• The AFL Operating Engineers lumped into one large geographic area the State of Delaware and the eastern half (34 counties) of Pennsylvania, known to it as Eastern Pennsylvania. This large area was subdivided into three parts: one for the State of Delaware; one for the 5-county area surrounding Philadelphia; and one for the 29 counties comprising the remainder of Eastern Pennsylvania.

Collective Bargaining Background

8. (a) Within the areas represented by the two unions, the distinction between “building construction,” “highway construction,” and “heavy construction” is historical.

“Building construction” concerned the erection of shelter, and included virtually every kind of structure having a roof over it: residences, apartments, stores, offices, schools, churches.

“Highway construction” concerned the building of roads and highways, including grading and more extensive earth moving and the installation of drains, culverts, and bridges.

“Heavy construction” concerned large earthmoving and concrete or concrete and steel installations, such as dams (together with their embankments and spillways), airports, and other large undertakings not specifically related to the erection of buildings or the installation of highways.

(b) In lay terms, either building construction or highway construction could be heavy, as distinguished from light. A small house, for example, would be building construction, but not heavy building construction such as the erection of a large office building. A country road, requiring the use of graders or even a small bulldozer, would be highway construction, but not heavy highway construction such as the building of a giant turnpike.

(c) This case is not concerned with construction which might be classified as heavy work as distinguished from light. It is concerned with the conjunctive: “Building and Heavy Construction,” or “Heavy and Highway Construction.”

(d) The parties are agreed that the work required by the contract in suit was “Heavy Construction.” They divide over the question as to whether the power equipment operators were properly classified as “Building and Heavy,” as defendant contends, or should have been classified as “Heavy and Highway” (or simply as “Highway”), as plaintiff contends. The distinction between these two categories had its origin in collective bargaining.

9. (a) Historically, the various AFL unions engaged in construction work in Pennsylvania inserted in their collective bargaining contracts (1) definitions of building construction, highway construction, and heavy construction and (2) scales of wages applicable to each category.

(b) By 1956-57 (the period material to this action), the AFL Operating Engineers had made some headway in a protracted and persistent effort to equate wage rates for Heavy Construction with wage rates for Building Construetion, the latter having been, traditionally, the higher of the two.

(c) District 50, on the other hand, was not contesting the field of Building Construction with the AFL unions, but confined itself to the fields of Heavy Construction and Highway Construction. For these two categories, District 50’s rates for power equipment operators were identical, and those rates were closely comparable to the AFL Operating Engineers’ rates for Highway Construction.

10. (a) The effort of the AFL Operating Engineers to equate the rates for power equipment operators engaged in Heavy Construction with the rates payable for Building Construction was begun in 1948 or 1949 in the 5-county area around Philadelphia. Considerable progress was made in inducing contractors to accept the category of Building and Heavy Construction, particularly when the heavy construction pertained to the extensive excavations incident to the erection of large buildings.

(b) Around 1955, the AFL Operating Engineers extended into the 29-county area of Eastern Pennsylvania the effort to induce contractors with the union to accept the category of Building and Heavy Construction without regard to the relation of the work to building construction, so long as the work was heavy construction as distinguished from highway construction.

Some progress in this direction was made, but by 1956-57 the union had not blanketed the area of Carbon and Luzerne Counties with the higher rate.

11. (a) The Associated Pennsylvania Constructors is a trade association of contractors engaged in Highway Construction and Heavy Construction. Its members did not engage in Building Construction. The membership of the association in the 34 counties of (the AFL’s) Eastern Pennsylvania was approximately 40 percent District 50, 30 percent AFL, and 30 percent nonunion.

(b) The members of the Associated Pennsylvania Constructors negotiated a statewide master contract with District

50. This contract had differing wage rates for each of the 7 groups of counties, but within a given group, District 50’s wage rates for Highway construction and for Heavy construction were the same.

Construction Work in Carbon and Luzerne Counties

12. (a) Construction work underway in Carbon and Lu-zerne Counties during 1956 and early 1957 was predominantly (in terms of volume) Highway Construction. Heavy Construction (involving dams and bridges) was second in volume. No Building Construction (involving heavy work) has been identified as having been underway in 1956-57.

(b) The major highway project was the construction of the Northeastern Extension of the Pennsylvania Turnpike, which passed within a few miles of the Bear Creek project. Approximately 40 miles of turnpike were constructed in the two counties, the work being performed by seven different contractors. More than 85 miles were constructed by companies under contract with District 50, while less than 3 miles were constructed by AFL contractors. The rates of wages paid to all employees on these projects, AFL or District 50, were the rates payable for, Highway Construction.

(c) In the fall of 1955, a hurricane caused substantial flood damage in the area, as a result of which construction amounting to several millions of dollars was undertaken in the two counties during 1956 and 1957. Construction of dams and bridges was involved, as were channel changes caused by flood erosion. Some 40 or 50 contractors took part in this work. Some of them were under contract with the AFL. All workmen were paid wages at the rates for Highway Construction, although much of the work done was Heavy Construction.

(d) Two dam construction projects were underway in Carbon and Luzerne Counties just prior to and at the time of the bidding on the contract in suit. One was the Forest Dam and Keservoir project of the City of Bethlehem Water Authority. The contract was awarded in 1956, for some $5,000,000, to Lycoming Construction Company, a District 50 contractor, which paid its power equipment operators the District 50 rates for Heavy and Highway Construction. The other project was the first Bear Creek contract for the outlet works, awarded in 1956, for some $700,000, by the Corps of Engineers to the Gasparini Construction Company, an AFL contractor, which paid its power equipment operators the AFL Operating Engineers’ rates for Building and Heavy Construction.

(e) The predominant practice in Carbon and Luzerne Counties during 1956 and early 1957 was that workmen, including power equipment operators, employed in Heavy Construction, and those engaged in Highway Construction, were paid at the same scale of wages being the scale established by the AFL for Highway Construction and the scale established by District 50 for Heavy and Highway Construction.

Narrative

13. (a) On January 11, 1957, the Corps of Engineers requested the Department of Labor to make a “determination of the wage rates to be paid laborers and mechanics” on the “construction of embankment, -spillway, tower, etc., at Bear Creek Beservoir” for the “entire schedule” of crafts, in contemplation of the invitation for bids on the contract in suit.

(b) The Department of Labor responded on January 17, 1957, with Wage Decision No. B-10,416 (set forth in the Appendix as Exhibit A).

(c) On March 1, 1957, the Corps of Engineers issued the invitation for bids “for construction of embankment and spillway and completion of outlet works for Bear Creek Beservoir, Lehigh Biver, Pennsylvania,” which incorporated Wage Decision No. B-10,416 as part of Paragraph SC-17 of the Special Conditions.

14. (a) Plaintiff had been engaged in the construction of dams and highways in Pennsylvania, intermittently, for more than 20 years. Plaintiff’s president had participated, on at least two occasions within recent years, in the negotiation of labor contracts by members of the Associated Pennsylvania Constructors.

(b) Prior to bidding the subject work, plaintiff’s president and members of its engineering estimating staff made an inspection of the project site and of general and local conditions, including the availability of labor, working rules, wage practices, and prevailing wages. They concluded that at the project site, laborers and mechanics, including power equipment operators, engaged in Heavy Construction or in Highway Construction were paid a uniform scale of wages, which was lower than the scale of wages sometimes paid to the same laborers and mechanics, particularly power equipment operators, when engaged in the Heavy Construction work incidental to Building Construction.

(c) Plaintiff’s bid was prepared on the basis of the foregoing determinations.

■15. (a) On March 6, 1957, the Corps of Engineers requested the Department of Labor to make another wage determination for the project. In the request, the Corps of Engineers certified to the Department of Labor that no highway type work requiring the use of power equipment would be involved.

(b) The Department of Labor responded on March 11, 1957, with Wage Decision No. K-13,689 (set forth in the Appendix as Exhibit B).

(c) On March 18, 1957, the Corps of Engineers issued Addendum No. 1 to the invitation for bids, substituting Wage Decision No. R-13,689 for Wage Decision No. it-10,416, and directing bidders to acknowledge its receipt prior to the opening of bids.

16. (a) On April 9,1957, plaintiff submitted its bid.

(b) The bids were opened on that day, April 9,1957.

(c) The contract was awarded to plaintiff on April 26, 1957.

17. (a) On April 30,1957, plaintiff entered into a contract with District 50 covering the Bear Creek project and establishing wage rates for power equipment operators identical with the rates then in force through the master contract between the union and the Associated Pennsylvania Constructors.

(b) The project-contract with District 50 listed 3 “classes” of equipment operators, covering 25 separate crafts, with hourly wage rates ranging from $1.95 to $2.75.

18. (a) On May 14,1957, at a preconstruction conference, plaintiff’s representative informed defendant’s area engineer that plaintiff intended to utilize rates and classifications of labor which (plaintiff said) were not included in the contract.

(b) On May 15, 1957, plaintiff wrote to defendant’s resident engineer enclosing “* * * Form 1581, requesting authorization of additional classifications and rates for laborers and mechanics * * and a copy of its contract with District 50.

(c) Form 1581 was a standard form for use in requesting authorization of additional classifications and rates, as contemplated by subparagraph (b) of Paragraph SC-17 of the Special Conditions. In lieu of a listing on the face of the form of classifications and rates requested, plaintiff attached 2 sheets whereon were listed 32 occupations or crafts, with the rates payable, all under the heading “Heavy and Highway construction.”

19. (a) By letter dated May 23,1957, the contracting officer denied plaintiff’s request for authorization, stating:

* ¡Ü * * *:
A review of your submittal indicates that the so-called additional classifications you are requesting are either already contained in Department of Labor Decision No. R-13,689, which is part of your contract, or that they can be reclassified conformably to such decision, in accordance with the procedure set forth in paragraph SC-17 of the contract. Since you are, in effect, requesting a reduction in the applicable minimum rates, rather than additional classifications, your request is denied.
‡ ‡ *
The wage rates set forth in your contract have been 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 pertinent locality and are the minimum rates which must be paid. If you feel that such rates are not in accord with the prevailing area practice, it is suggested that you present the matter to the Secretary of Labor for his decision.

(b) On May 31, 1957, plaintiff protested the position taken by the contracting officer and renewed its request for authorization:,, -

* * *
Our submittal of May 15, 1957 on your Form 1581 was made in good faith to correct what we believe was an obvious omission in the Department of Labor Decision No. B-13,689, which is a part of our contract. It was not a request for a reduction in the applicable minimum rates because no minimum rates were set forth in Department of Labor Decision No. B-13,689 for any of the, classifications contained in our schedule of May 15, 1957.
* * * Department of Labor Decision No. R-13,689 * * * appears to give some rates which are applicable to the instant contract and many other rates which obviously have no applicability whatsoever to the contract. * * * * * * * . *
We have assumed in accordance with the generaJ practice in the industry and the practices in the area where the contract is to be performed, that the rates paid in this job would be those rates listed under the general classification of "Heavy and Highway Construction" rather than those rates listed under the general classifications of "Building," "Building Construction," or "Building and Heavy. Construction." Therefore, inasmuch as the Departm~nt of Labor decision did not list under' the general classification of "Heavy and Highway Construction" rates for operators of power equipment, we submitted to y.u, in accordance with paragraph SC-17 of the contract, rates under this general classification for the laborers and mechanics who would be operating such equipment.
The Department of Labor `decision lists under the general classification of "Building and Heavy Construe`tion" rates for a number of classifications of employees .who operate power equipment. These rates, however, like some of the rates contained in the decision for laborers, carpenters, and truck drivers set forth above, obviously are not intended to apply to this particular contract, which clearly is a contract for "Heavy and Highway Cons ftuction" work.
Before bidding on this job, and since that time, we have carefully examined the labor contracts applicable to the area in which this contract is to be performed, and have found a clear practice of treating work of this kind as “Heavy and Highway Construction.” Our own agreement with the United Construction Workers, Division of District 50, United Mine Workers of America (a copy of which was attached to óur submittal of May 15,1957) bears this out. * * *
As we have pointed out above, the Department of Labor Decision No. R-13,689, dated 11 March 1957, includes duplications and inconsistencies. We think that this decision also includes no decision whatsoever with respect to the rates applicable to operators of power equipment on “Heavy and Highway Construction.” Under the circumstances, we cannot proceed with the performance of this contract without being informed of your interpretation of this decision. * * *
*****
To the extent that your interpretation of Department of Labor Decision No. R-13,689 requires us to pay rates higher than those contained in our contract with the United Construction Workers, we intend to protest your interpretation and to appeal therefrom in accordance with the appeal provisions of the contract. * * *

(c) On June 12, 1957, the contracting officer rejected plaintiff’s argument and directed plaintiff to pay the rates listed in Wage Decision No. R-13,689.

* . * * * *
It is true that Department of Labor Decision No. R-13,689, which is part of your contract, does contain cl'assi-fications which will not be used in the performance of your contract. However, those classifications which are contained therein that will be used must receive the minimum rates set forth as follows:
* * . * * *
4. The rates specified for power equipment operators apply to building construction and to heavy construction.
5. The rates specified under the heading of “Heavy and Highway Construction” apply both to heavy and to highway construction.
6. Briefly summarizing the preceding two subpara-graphs, the “and” in the headings “Building and Heavy Construction” and “Heavy and Highway Construction” is used as “or.” Therefore, since it has been mutually agreed that the principal work covered by your contract is under the category of heavy construction, your contract does contain minimum rates for all of the power equipment operators listed in your letter as well as most of the labor classifications.
* * * * *
If you continue to disagree on the proper classification or reclassification of a particular class of laborers and mechanics, the question will be referred to the Secretary of Labor for final determination, in accordance with paragraph SC-17 b of your contract. In such case, you. Should submit any additional pertinent data which you feel may supplement your earlier submittals for the Secretary’s review.

(d) On June 14,1957, plaintiff replied:

* * * * ❖
* * * you state, in part, that “* * * since it has been, mutually agreed that the principal work covered by your contract is under the category of heavy construction* your contract does contain minimum rates for all the power equipment operators * *
We do not agree that the work covered by this contract is under the category of “heavy construction.”' * * * we contend that the rates applicable to this contract fall within the general classification or category of “Heavy and Highway Construction.” * * * the Department of Labor’s decision No. B,-18,689, * * * failed to list therein minimum wages to be paid the power equipment operators engaged in such “Heavy and Highway Construction.”
* * * you disagree with our contentions in this respect. * * *
In view of the foregoing, it is apparent that there-exists a dispute between the contractor and the Contracting Officer as to whether or not the Department of Labor’s decision referred to above lists the minimum wages to be paid power equipment operators listed in our request for authorization of additional classifications * * *
This dispute as to whether or not the Department of Labor decision does or does not list minimum wages to-be paid these power equipment operators is, in our opinion, a dispute of law and of fact which should be subject to the general dispute provisions of the contract. This is not such a dispute which is subject to the provisions of Paragraph SC-17 (b) of the contract.
If you are correct in your position that the minimum wages for power equipment operators are set forth in the Department of Labor’s wage decision and therefore are included in the contract, paragraph SC-17 (a) of the contract requires that we pay these minimum wages. Only in the event that we are correct in our opinion (that neither the Department of Labor’s wage decision nor the contract sets forth the minimum wages to be paid these power equipment operators) is there any occasion to utilize the provisions of Paragraph SC-17(b) of the contract.
As stated above, it appears to be clear that the dispute between the contractor and the Contracting Officer is first and primarily a dispute as to whether or not minimum wage rates for power equipment operators are included in the Department of Labor’s decision and the contract. We do not, of course, believe that the contract provides that this dispute shall be referred to the Secretary of Labor for final determination. In view of the foregoing, and to avoid losing our right to appeal your decision by the passage of time, we enclose herewith a copy of our appeal from your decision * * *.
In order to avoid delay and consequent extra costs in the performance of the contract, and pending our appeal, we are proceeding with the work on the project, paying those minimum wage rates of pay which are set forth in the contract under the general classification of “Heavy and Highway Construction” and, with respect to power equipment operators (whose applicable minimum rates we believe are not set forth in the contract) those rates set forth in our schedule of May 15, 1957 (form 1581). In the event that it is finally determined that the payment of the latter rates does not constitute full compliance with the terms of the contract, we will make prompt restitution to the employees involved of any sums of money due to them as wages under such a final determination.

(e) On the same day, June 14, 1957, plaintiff appealed “the decision of the Contracting Officer set forth in his letters * * * dated May 23 * * * and June 12, 1957 * * *” to the Chief of Engineers.

20. (a) On June 24,1957, the contracting officer requested the Chief of Engineers to seek a determination of the dispute with plaintiff by the Secretary of Labor. He enclosed a detailed statement of the origin and progress of the dispute, and concluded with the following:

13. Recommendations:
a. It is recommended that the dispute be processed under the provisions of paragraph SC-l7b of the contract and paragraph 5.6 (c) of Regulations, Part 5, and final determination as to proper classification and rate be made by the Secretary of Labor rather than the Chief of Engineers.
b. It is recommended that the classifications and rates set forth in Department of Labor Decision No. R-13,689 under the heading “Building and Heavy Construction” be reconfirmed as applicable to the subject contract.
14. The fact that these rates are prevailing in the area for projects of a similar nature is substantiated by the payment of such rates on the following contracts:
a. Contract No. DA-36-109-CIVENG-56-146 for the construction of the outlet works at Bear Creek Reservoir. This contract is being performed at the same location and provided for the_ preliminary work for the subject contract. The prime contractor is the Gasparini Excavating Co., Inc., of Peckville, Pa. and the estimated contract amount was $742,176.60.
b. Contract No. DA-36-109-CIVENG-57-198 for construction of the Dyberry Dam and Appurtenant Structures at Dyberry Creek, Wayne County, Pa. Prime contractor is Hunkin-Conkey Construction Co. of Cleveland, Ohio and the contract is in the estimated amount of $1,645,081.02.

(b) On June 26, 1957, plaintiff’s attorney was informed that the dispute was being referred to the Secretary of Labor for final determination in accordance with the provisions of Paragraph SC-17 of the Special Conditions.

(c) On July 1, 1957, plaintiff’s attorney protested this procedure:

* * * your letter states that:
“In accordance with the provisions of SC-17(b) of the contract the question is being referred, through the Office of the Chief of Engineers, to the Secretary of Labor for final determination.”
It is respectfully requested that we be advised in further detail as soon as possible, either by you or the Office of the Chief of Engineers, of the nature of the “question” being referred to the Secretary of Labor for final determination.
The earlier correspondence on this matter indicates that the only dispute or question which has arisen thus far is predicated, on the one hand, upon the contractor’s contention that the contract, properly interpreted, does not set forth the classifications and wage rates which were the subject of the contractor’s request for authorization of additional classifications dated May 15,1957, and, on the other hand, the contention of your office, expressed in your letters dated June 12, 1957, and May 23, 1957, that the contract, properly interpreted, does contain wage rates for these ^‘so-called additional classifications.”
The dispute or question thus raised is, of course, soluble only by a determination of the proper interpretation of the contract. Such a determination clearly involves a question of law ra/ther than a question of fact. * * *
If, therefore, the “question” which you state in your letter of June 26,1957 will be referred to the Secretary of Labor for “final determination” is the question of law mentioned above, it is clearly not a “question” which is subject to final determination by the Secretary of Labor. * * *
*****
Further, as pointed out in our letter of June 14,1957, paragraph SC-17 (b) of the contract relates only to the resolution of questions concerning the rates of pay of laborers and mechanics “not listed” in the contract.
Your attention is also directed to the decision of the Comptroller General — GAO; Comp. Gen. Dec. B-132044, 6/10/57, reported at 25 U.S. Law Week 2612— to the effect that the authority of the Secretary of Labor in public contract cases is limited to the investigation and determination of locally prevailing wages for laborers and mechanics to be employed in the performance of public contracts. Clearly, this limitation, as well as the provisions of SC-17 (b), precludes any binding determination by the Secretary of Labor of a question of law involving the interpretation of the contract.
*****

(d) On July 30,1957, the Office of the Chief of Engineers forwarded the question to the Solicitor of Labor:

A question has arisen * * * whether Department of Labor Decision No. R-13,689 contains the classifications and wage rates which were the subject of the contractor’s request for additional classifications.
■ Although this is not a question as to the proper classification or rates to be considered in accordance with SC-1T of the contract and Section 5.6 (c) of Regulations, Part 5, the inclosed material is being referred to your office for a ruling or an interpretation pursuant to Section 5.11 of Regulations, Part 5.

2L (a) On August 26, 1957, the Solicitor of Labor, in a letter to the Chief of Engineers, concurred in the contracting officer’s decision of May 23,1957, as follows:

* * * It appears that the contractor on the project * * * negotiated a collective bargaining agreement subsequent, to the awarding of the contract and has requested permission to pay lower rates than those contained in the applicable wage determination issued under the Davis-Bacon Act for the project.
Wage Determination No. Rr-13,689 dated March 11, 1957, is the applicable determination for the project and was made a part of the contract between the contractor and the Corps of Engineers for the construction of the project. The rates therein are prevailing in Carbon and Luzerne Counties, Pennsylvania, for the type of construction involved and are currently being paid for work at the same location being performed by another contractor. ■
Included in the enclosures transmitted to this Office with your letter of July 30,19.57, was a copy of 'a letter dated May 23,1957, from the Contracting Officer to the contractor. In this letter the Contracting Officer stated that: ■
“A review of your submittal indicates that the so-called additional classifications you are requesting are either already contained in Department of Labor Decision No. R-13,689, which is a part of your contract, or they can be reclassified conformably to such decision, in accordance with the procedure set forth in paragraph SC-17 of the contract. Since you are, in effect, requesting a reduction in the applicable minimum rates rather than additional classifications, your request is denied.” _
_ Since the rates contained in Wage Determination No. R-13,689 are prevailing in Carbon and Luzerne Counties, Pennsylvania, for the type of construction involved, we concur in the views of the Contracting Officer as contained in his letter of May 23, 1957, to the contractor. The Davis-Bacon Act requires the payment of all wages due, unconditionally and not less often than once a week, computed at wage rates not less than those contained in the construction contract. In the event that the contractor continues to pay wage rates less than those contained in the contract, it will be appreciated if you will so inform this Office.

(b) On September 9, 1957, the contracting officer forwarded to plaintiff a copy of the letter from the Solicitor of Labor, with the following directions:

* * * * *
* * * you are directed to conform with the minimum rates contained in your contract immediately. Restitution is to be made to all laborers and mechanics, employed by you and/or your subcontractors, for all hours worked for which they were paid at a lower rate than that specified.
*****

(c) On September 10, 1957, plaintiff’s attorney wrote to the contracting officer:

* * * * *
Your letter of September 9, 1957, fails * * * to set forth minimum rates which you are directing that the Contractor and/or its subcontractors shall pay.
The Contractor has never questioned its obligation to pay the minimum rates set forth in the contract which are properly applicable to this project, which under recognized industry practices is a project properly classified under “Heavy and Highway Construction” rather than “Building Construction” or “Building and Heavy Construction.” The contract, however, contains, as the Contractor pointed out in its letter of May 31, 1957, addressed to you, duplicate and inconsistent “minimum rates.” Further, the contract contains no rates whatsoever for operators of power equipment under the category of “Heavy and Highway Construction” contained on pages III-14 and III-15 of the contract.
The Contractor contends that the contract properly interpreted requires only that it pay no less than the rates set forth in the contract under “Heavy and Highway Construction” on pages III-14 and III-15 thereof. Inasmuch as the contract does not list rates for certain power equipment operators under. “Heavy and Highway Construction,” the Contractor, acting pursuant to SC-17(b) of the contract, sought approval of the Contracting Officer of a mutual agreement between the “Contractor and the class of labor involved” establishing rates for the classifications not listed. * * *
The directions contained in your letter of September 9, 1957, merely are that the Contractor “confonn with the minimum rates contained in [its] contract immediately,” without any specificity, and without making any further response to the Contractor’s letter of May 31, 1957, which requested that you be specific with respect to this matter.
* % % & #
We do not like to extend our already lengthy correspondence on this matter and thus burden your office with unnecessary work. We intend to pay, of course, whatever rates you direct that we pay. We simply request that you make your direction specific so that we can comply therewith.

(d) On September 13, 1957, the contracting officer, responding to the foregoing letter, wrote to plaintiff:

*****
Your request for “additional classifications and rates” was denied so that the only minimum rates are those contained on pages III-12 through III-15 of the contract. These have been confirmed by the Solicitor of Labor as the prevailing rates for the type of construction involved and are the minimum rates which must be paid.
One the basis of a review of the payrolls submitted by you to date, it appears that you have been complying with the prescribed minimum rates for all classifications with the exception of the power equipment operators. The minimum rates for such employees are set forth on page III-14 of the contract. * * *
*****
This letter and the inclosed copy of the Contracting Officer’s statement submitted to the Secretary of Labor constitute my decision and findings of fact. Should you disagree with my decision, you may appeal to the Chief of Engineers. * * *

(e) On October 7,1957, plaintiff appealed the contracting officer’s decision of September 13, 1957, to the Chief of Engineers, and consolidated therewith its appeal of June 14, 1957, from the contracting officer’s decision of May 23,1957.

(f) On October 22, 1957, the Government Trial Attorney filed with the Corps of Engineers Claims and Appeals Board a motion to dismiss plaintiff’s appeal for lack of jurisdiction, asserting that the disputes clause of the contract ■“contains an exception to the dispute procedure contained therein where the determination of factual issues is ‘otherwise provided (for) in this contract,’ ” and—

* * * * *
3. Disputes over the classification or reclassification of laborers and mechanics is “otherwise provided” for in Paragraph SC-1-7, Eates of Wages, as follows:
In the event the interested parties cannot agree on the proper classification or reclassification of laborers and mechanics to be used, the question, accompanies [sic] by the recommendation of the Contracting Officer, shall be referred to the Secretary of Labor for final determination. [Underscoring supplied!]
4. The dispute has been submitted to the Secretary of Labor and the determination of the Secretary of Labor, adverse to the Appellant’s contentions, is contained in his letter dated 26 August 1957.
5. Paragraph 5.6(c) of Regulations, Part 5, Title 29, Subtitle A, Code of Federal Regulations contains the quotation from SC-17, above. Paragraph 5.11 of Regulations states that “All questions arising in any agency relating to the application and interpretation of regulations contained in this part and of the Davis-Bacon Act, as amended, * * shall be referred to the Secretary of Labor for appropriate ruling or interpretation.” [Underscoring supplied.]
# * * * *

(g) By decision dated April 17, 1958, tbie Corps of Engineers Claims and Appeals Board granted the Government’s motion and dismissed plaintiff’s appeal.

22. (a) Following are pertinent excerpts from the summary by the Corps of Engineers Claims and Appeals Board preceding its decision:

* * sj: * ^
The issue involved a determination by the contracting officer that all power equipment operators were to be paid at the rate prescribed for each operator under the classification of “Building and Heavy Construction,” while the appellant in essence contends that the revised wage classification schedule did not contain a listing for power operators under the classification of “Heavy and Highway Construction,” which it insists is the proper categorization of the work.
=i-.****
The appellant opposes the Government’s motion on the ground that the dispute between it and the contracting officer as to whether the wage determination of the Department of Labor did or. did not contain the applicable minimum wage rate to be paid the power operators is one properly cognizable under the Disputes article of the contract rather than under paragraph SC-17. The appellant points out that SC-17 (a) merely provides that the minimum wages to be paid laborers and mechanics shall be set forth in the contract, while SC-17 (b) sets up the procedure for the establishment of minimum wages for laborers and mechanics not listed in the contract. * * * •
The appellant argues that if the contracting officer is correct in his position that the minimum wages for power equipment operators are set forth , in the wage determinations and are therefore included in the contract, it is admitted that the appellant must pay, such wages. It is only if the appellant is correct in its view that neither the wage determination nor the contract set forth the minimum wages to be paid the power equipment operators is there any occasion to utilize the procedure of SC-l7(b). This type of problem, insists the appellant, is first and primarily a dispute as to whether the applicable wage rates are included in the contract and that it is not the intent of the contract that this type of dispute be referred to the Secretary of Labor for final determination.

(b) Following is the text of the Board’s decision:

DECISION
Admittedly, this motion raises problems on which there has been no firm resolution as yet by all of the Governmental agencies concerned. Nonetheless, we are of the opinion that a decision as to whether the power operators are to be paid at rates prescribed for “Building and Heavy Construction” or at rates tó be determined as prevailing for “Highway and Heavy Construction” is more properly a decision for the Department of Labor than for this Board. A decision by this Board would obviously have no binding effect on either the Secretary of Labor or on any contractor other than the present appellant on this very appeal. Yet by its very nature a determination of the proper wages to be paid power operators in Carbon and Luzerne Counties, of Pennsylvania, should have a general application to all contractors within an area — in other words, it must literally be “prevailing” — and the responsibility to fix such a prevailing wage pattern is clearly that of the Secretary of Labor.
Our view is reaffirmed by the fact that the Secretary of Labor, in a letter dated 8 April 195T to the Secretary of Navy has asserted the position that Begulations, Part 5 (29 CFB, Subtitle A), issued pursuant to Be-organization Plan No. 14, impose a duty on the part of all Government agencies to submit to the Secretary of Labor all questions concerning the application of labor standard laws and provisions for appropriate ruling or interpretation, and has concluded therefrom that the making of final and conclusive determination by Contract Appeals Board would be inconsistent with the duties required of the Secretary of Labor. Both policy and logic compels a compliance with this view.
Accordingly, for the reasons stated, the Motion to Dismiss is granted and the appeal is dismissed.

Restitution: Damages

23. (a) Plaintiff made full restitution to the employees whose wages had been computed at the lower union contract rates rather than at the minimum rates set forth in Wage Decision No. B-13,689, and thereafter paid its power equip: ment operators wages computed at the rates set forth in Wage Decision No. B-13,689.

(b) If plaintiff is entitled as a matter of law to recover, the measure of damages should be the difference between the wages actually paid by it to its power equipment operators, computed at the rates in Wage Decision No. B-13,689, and the lower wages it would have paid these employees if it had been permitted to apply the union contract rates.

(c) The parties have agreed that the amount of this difference is $163,384.37.

Conclusions

24. Plaintiff has exhausted its administrative remedies.

25. The certification by the Corps of Engineers to the Department of Labor, in the request for the second wage determination, that no power equipment operators would be employed on the project in highway-type work, was both inaccurate and misleading. A minor portion of the project work was highway-type work. Under the circumstances existing in Carbon and Luzerne Counties at the time, Highway Construction and Heavy Construction were more nearly synonymous in labor and wage parlance than were Building Construction and Heavy Construction.

26. (a) At the dates of issuance of both Wage. Decisions, and at the time plaintiff’s bid was submitted, the classification of Heavy and Highway Construction, as a category for the employment of power equipment operators, was well known in Carbon and Luzerne Counties. This classification was better known to more contractors and accounted for the employment of more power equipment operators in that area than was true of the classification known as Building and Heavy Construction.

(b) The power equipment operators required by the project named in plaintiff’s contract were available under the classification and at the rates of Heavy and Highway Construction.

(c) Plaintiff’s interpretation of the Wage Decisions as reflecting omission of power equipment operators for Heavy and Highway Construction was a reasonable interpretation.

APPENDIX

Exhibit A

Department of Labor Decision No. Br-10,416, dated 17 January 1957, contains the following rates of wages applicable to construction of embankment, spillway, tower, etc., at Bear Creek Reservoir, Luzerne and Carbon Counties, Pennsylvania:

Minimum Rates of Wages Glassification of Laborers and Mechanics Per Sour

Carpenters (Carbon County)_!_$2.57

Carpenters, Work over 50 ft. Above Ground (Carbon County)_2. 82

Minimum Rates of Glassification of Wages Laborers and Mechanics Per Hour

Asbestos Workers_$3. 00

Asbestos Workers improvers:

1st year_ 1. 50

2d year_ 1.80

3d year_ 2.10

4th year_ 2.40

Boilermakers_ 3. 90

Boilermakers helpers_ 3. 65

Bricklayers_ 3.20

Carpenters (Building)_ 2.75

Cement masons_ 2. 95

Electricians_ 3. 00

Elevator constructors_ 3.305

Eleva'tor constructors helpers _ 2.31

Glaziers_ 2.05

Ironworkers, structural_3.90

Ironworkers, ornamental- 3.90

Ironworkers, reinforcing- 3. 80

Laborers: (Building) Construction laborer_ 2. 00

Minimum Rates of Glassification of Wages Laborers and Mechanics Per Hour

Mason tender_$2.15

Plasterer tender_ 2.325

Scaffold builders_ 2.325

Laying all clay, terra cotta, ironstone, vitrir. fled concrete or nonmetallic pipe and the making of joints for same-_ 2.15

Handling and using cutting or burning torches in the wrecking of buildings_ 2.15

Blaster_ 2.325

Blaster helper_ 2.15

Wagon drill operator_ 2.325

Wagon drill helper_ 2.00

Men working on asphalt or any tar matter or any hot material_ 2.15

Cement mason helper_ 2.15

Minimum jRates of Classification of Wages Laborers and Mechanics Per Hour

Laborer assisting plumber and steam fitter-$2.05

Operator of jackhammer, paying breaker and other pneumatic and mechanical tools coming under the jurisdiction of laborers_ 2.15

Signal men and flagmen— 2.00

Carpenter tender- 2. 00

Pouring of all concrete— 2.00

Mixing of all materials used by masons- 2.15

Stripping and dismantling forms_ 2. 00

Loading and unloading, carrying and handling of all rods and materials for use in reinforcing concrete construction_ 2. 00

Excavating for building and all other con-struction_2. 00

Scaffold builder-tender rate-

Cribbing of trenches and shoring underpinning or wrecking and moving of all structures- 2.10

Lathers_ 2.925

Lead burners- 3.50

Painters, brush- 2.375

Painters, structural steel — open- 2.75

Piledrivermen- 3.30

Plasterers- 3.10

Minimum Bates of Classification of Wages Laborers and Mechanics Per Sour

Plumbers _$3.175

Pipe fitters_ 3.175

Roofers_ 2. 65

Roofers kettlemen_ 2.275

Roofers helpers- 2.15

Sheet metal workers_ 2. 90

Soft floor layers_ 2.475

Sprinkler fitters_- 2.79

Stone masons_ 3.20

Marble setters_ 3.05

Marble setters helpers— 2.125

Carpenters (Heavy and Highway)_ 2.50

Terazzo workers_ 3. 05

Terazzo workers helpers- 2.125

Tile setters- 3.05

Tile setters helpers_ 2.125

Truck drivers: (building)

Pick-up_ 1.75

Dump_ 1. 95

Over Z license_ 2.00

Truck to and including 12 tons capacity_ 2.05

Truck to 20 tons capacity (over 12 tons)— 2. 07

Over 20 tons capacity_2.10

Welders — receive rate prescribed for craft performing operation to which welding is incidental_

Millwrights- 3.25

Line construction:

Linemen_ 3.43

Cable splicers_ 3.43

Groundman_ 2.32

Glassification of Laborers and, Mechanics Heavy and Highway Construction Minimum Bates of Wages Per Hour

Carpenters_$2. 50

Laborers:

Laborers-1.60

Pipe layers-1.75

Wagon drill operators— 1.90

Blasters_1.90

Aspbalt tampers_1.60

Asphalt rakers-1. 60

Form setters (road)-1.90

Caisson men, below 8 ft. — open air_1. 90

Cofferdam — below 8 ft_1. 90

Concrete pitmen, pud-dlers and rubbers_1. 60

Landscape, planters, seeders and arborists_1. 60

Magazine tenders_1. 60

Bailroad track men and signalmen_1. 60

Free Air Tunnels and Rode Shafts

Outside laborers_1.95

Chuck tenders, muckers, nippers, miners and drillers helpers — laborers inside_2.10

Glassification of Laborers and Mechanics Free Air Tunnels anil Rock Shafts — Con. Minimum Bates of Wages Per Hour

Miners, drillers, blasters, pneumatic shield operators, lining spotting and timber work men_$2.25

Truck drivers:

Service truck only *4 to y2 tons-1.425

Dump and flat top trucks (straight type) :

U to Z licenses_1. 625

Over Z licenses_1.675

Heavy duty hauling equipment:

Heavy duty trailer_1. 775

Winch truck_1. 775

Liquid distributor trucks_1. 675

Heady mis drivers_1. 775

Concrete mis drivers_1. 775

Euclid type equipment_1. 90

Building and Heavy Construction

Power equipment operators:

Steel and stone erection- 3.81

Backhoes_3.685

Draglines-3.685

Glassification of Laborers and Mechanics Building and Heavy Construction — Con. Minimum Rates of Wages Per Hour

Keystones_$3.685

Shovels-3. 685

Trench shovels_3.685

Trench machines_3. 685

Cranes, pavers, 21-E and over_3.685

Derricks_3. 685

Cableways_3.685

Building hoists (single and double drums)_3.435

Scrapers_3.31

Well drilling rigs_3.385

Tournapulls_3.31

Bulldozers and tractors- 3. 06

Tugger machines_3.285

Conveyors_3.285

Concrete breaking machines_3.285

Spreaders_3.285

High or low pressure boilers_3.285

All other equipment on building and construction work not men-tioned_3.285

Tunnel mucking machines_3.425

Concrete pumps_3.285

Rollers_3.16

Firemen_2.71

Welding machines_3.235

Well point pumps-3.11

Compressors_3.11

Pumps_3.11

Maintenance engineers_3.11

Oilers and apprentice engineers _2.435

Space heaters_3.06

Hydra hammers-3.285

Glassification of Laborers and Mechanics Minimum Building and Heavy Rates of Construction — Con. Wages Per Hour

Fork lifts_$3.285

Front end loaders_3.285

Highway Construction

Power equipment operators:

Backhoes_2.80

Draglines_2. 80

Power shovels-2.80

Cranes_2.80

Keystones _2. 80

Pavers, 21-E and over_2. 80

Trenching machines_2. 80

Cableways_2.80

Carry-alls, scrapers and Tournapull machines- 2.40

Bulldozers and tractors- 2.40

Motor patrols_2.40

Rollers, high grade finishing _2.40

Concrete breaking machines _2.40

Asphalt spreaders_2.40

Concrete pumps_2.40

Seamen pulverizing misers_2.30

Rollers, grade fill and stone base_2.30

Farm tractors_2.15

Road finishing machines 2.15

Concrete spreaders_2.15

Form line graders_2.15

Conveyor loaders-2.15

Mechanics and welders- 2.35

Compressors_2.20

Pumps_2.20

Firemen_2. 00

Apprentice engineers and oilers_1. 75

The wage rates contained in this decision are straight hourly wage rates. In some areas management and labor organizations in the construction industry have collectively bargained for health and welfare fund contributions. Such contributions are not included in wage rates determined by the Secretary of Labor for construction projects.

Exhibit B

Department of Labor Decision No. Br-13,689, dated 11 March 1957, contains the following rates of wages applicable to construction of embankment, spillway, tower, etc., at Bear Creek Beservoir, Luzerne and Carbon Counties, Pennsylvania:

Classification of Laborers & Mechanics Carbon County: Minimum Bates of Wages Per Hour

Bricklayers-_$3.25

Carpenters_ -2.57

Cement masons_ _2. 64

Ironworkers, structural-_3.75

Ironworkers, reinforcing-_3.60

Laborers: (Building construction)

Laborers-_2.15

Air tool op. (jackhammer, vibrator) _2.40

Mason tenders-_2.45

Mortar mixers-_2.45

Painters, brush_ _2.475

Painters, structural steel-_3.05

Plumbers-_3.35

Sheet metal workers-_2.90

Truck drivers: (building construction)

General-_2.05

Dumps_ _2.20

Concrete mixer_ _1.75

Luzerne County

Luzerne County Per Hour

Asbestos workers-$3. 00

Asbestos workers improvers:

1st year_1. 50

2nd year_1. 80

3rd year_2.10

4tb year_2.40

Boilermakers_3.90

Boilermakers helpers-3.65

Bricklayers_3.20

Carpenters (building)-2.75

Cement masons-2.95

Electricians_3.00

Elevator constructors-3.305

Elevator constructors helpers-2.31

Glaziers-2. 05

Ironworkers, structural— 3. 90

Ironworkers, ornamental— 3. 90

Ironworkers, reinforcing— 3. 80

Cement mason helper-2.15

Laborers: (Building)

Construction laborer-2. 00

Mason tender_2.15

Plasterer tender-2.325

Scaffold builders_2.325

Laying all clay, terra cotta, ironstone, vitrified concrete or non-metallie pipe and the making of joints for same_2.15

Handling and using cutting or burning torches in the wrecking of buildings— 2.15

Blaster_2.325

Blaster helper_2.15

Wagon drill operator_2.825

Wagon drill helper_2.00

Men working on asphalt or any tar matter or any hot material_2.15

Laborer assisting plumber and steam fitter_2.05

Luzerne County — Con. Per Hour

Operator of jackhammer, paving breaker and other pneumatic and mechanical tools coming under the jurisdiction of laborers_$2.15

Signalmen and flagmen_2.00

Carpenter tender_2. 00

Pouring of all concrete_2.00

Mixing of all materials used by masons_2.15

Stripping and dismantling forms_2. 00

Lead burners_3. 50

Loading and unloading, carrying and handling of all rods and materials for use in reinforcing concrete con-struction_2. 00

Excavating for building and all other construc-tion_2.00

Scaffold builder-tender rate Cribbing of trenches and shoring underpinning or wrecking and moving of all structures_2.10

Lathers_2.925

Painters, brush_2.375

Painters, structural steel— open_2. 75

Piledrivermen_3.30

Plasterers_3.10

Plumbers_3.175

Pipefitters-3.175

Roofers_2.65

Roofers kettlemen_2.275

Roofers helpers_2.15

Sheet metal workers_2. 90

Soft floor layers_2.475

Sprinkler fitters_2. 79

Stone masons_3.20

Marble setters_3. 05

Marble setters helpers_2.125

Luzerne County — Con. Per Hour

Carpenters (Heavy and Highway)_$2. 50

Terazzo workers_3.05

Terazzo workers helpers_2.125

Tile setters_3. 05

Tile setters helpers_2.125

Truck drivers: (building)

Pick-up_1.75

Dump_1.95

Over Z license_2.00

Truck to and including 12 tons capacity-2. 05

Truck to 20 tons capacity (over 12 tons)_2.07

(over 20 tons capacity) -2.10

Welders — receive rate prescribed for craft performing operation to which welding is incidental

Millwrights_3.25

Line construction:

Linemen_3.43

Cable splicers_3.43

Groundman_2.32

Building and, Heavy Construction

Power equipment operators:

Steel and stone erection- 3. 81

Baekhoes_3. 685

Draglines-3.685

Keystones_3.685

Shovels_3. 683

Trench shovels_3. 685

Trench machines_3. 685

Cranes, pavers, 21-E and over_3.685

Derricks_3.685

Cableways_3.685

Building hoists (single and double drums)_3.435

Scrapers_3. 31

Well drilling rigs_3.385

Tournapulls_3.31

Building and Heavy Construction — Con. Per Hour

Bulldozers and traetors_$3.06

Tugger machines_3.285

Conveyors_3.285

Concrete breaking ma-chines_3.285

Spreaders_3.285

High or low pressure boilers_3.285

All other equipment on building and construction work not men-tioned_____3. 285

Tunnel mucking machines_3.425

Concrete pumps_3.285

Boilers_3.16

Firemen_2.71

Welding machines_3.235

Well point pumps_3.11

Compressors_3.11

Pumps_3.11

Maintenance engineers_3.11

Oilers and apprentice en-gineers_2.435

Space heaters_3.06

Hydra hammers_3.285

Fork lifts_3.285

Front end loaders_3.285

Heavy and Highway Construction

Carpenters_2.50

Laborers:

Laborers_._1. 60

Pipe layers_1.75

Wagon drill operators_1.90

Blasters_1.90

Asphalt tampers_1.60

Asphalt rakers_1.60

Form setters (road)_1.90

Caisson men, below 8 ft. — open air_1.90

Cofferdam — below 8 ft— 1.90

Heavy and, Highway Construction — Con. Per Hour

Concrete pitmen, pud-dlers and rubbers-$1. 60

Landscape, planters, seeders and arborists- 1.60

Magazine tenders-1.60

Railroad trackmen and signalmen_1. 60

Free Air Tunnels and Roclo Shafts

Outside laborers-1.95

Chuck tenders, muckers, nippers, miners and drillers helpers — laborers inside_2.10

Miners, drillers, blasters, pneumatic shield operators, lining spotting and timber workmen_2.25

Free Air Tunnels and Roclo Shafts — Con. Per Hour

Truck drivers:

Service truck only % to % tons_$1.425

Dump and flat top trucks (straight type):

U to Z licenses_1.625

Over Z licenses_1.675

Heavy duty hauling equipment:

Heavy duty trailer_1.775

Winch truck_1. 775

Liquid distributor trucks-1.675

Ready mix drivers_1.775

Concrete mix drivers_1.775

Euclid type equipment— 1.90

The wage rates contained in this decision are straight hourly wage rates. In some areas management and labor organizations in the construction industry have collectively bargained for health and welfare fund contributions. Such contributions are not included in wage rates determined by the Secretary of Labor for construction projects.

CONCLUSION OF LAW

Upon tbe foregoing findings of fact, which, are made a part of the judgment herein, the court concludes as a matter of law that plaintiff is not entitled to recover, and its petition is therefore dismissed. 
      
       District 50 had negotiated a master contract with the Associated Pennsylvania Constructors, a trade association engaged in Highway and Heavy Construction. Plaintiff was a member of Associated Pennsylvania.
     
      
       Paragraph SC-17 of the Special Conditions of the contract provided as follows:
      SC-17 Rates op wases :
      (a) The minimum wages to be paid laborers and mechanics on this project, as 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 pertinent locality, are as set forth below.
      (b) Any class of laborers and mechanics not listed below employed on this contract shall he classified or reclassified conformably to the schedule set out below by mutual agreement between the contractor and class of labor concerned, subject to the prior approval of the Contracting Officer. In the event the interested parties cannot agree on the proper classification, or reclassification of a particular class of laborers and-mechanics to be used, the question, accompanies [sic] by the recommendation of the Contracting Officer, shall be referred to the Secretary of Labor for final determination.
     
      
       Finding of Fact 19(a) — Plaintiff's letter to the contracting officer, May 23, 1967: ‘We have assumed * * * the rates paid would be paid * * * under the general classification ‘Heavy and Highway Construction’ * * See also Finding 19(d), plaintiff’s letter of June 14, 1957, and Finding 21(c), plaintiff’s letter of September 10, 1957, both of which read in the same tenor.
     
      
       Apparently, the Secretary’s second wage decision (as well as his first) adopted the AFL union’s nomenclature, rather than the District 50 nomenclature, and also adopted the higher wage rate which the AFL was attempting-to maintain for power equipment operators engaged in heavy construction. See findings 10, 12(d), 20(a). Accordingly, we read the Secretary’s decision, on referral from the Corps of Engineers, as determining that the second wage-decision had included power equipment operators engaged in heavy construction (like plaintiff’s) under the heading of “Building and Heavy Construction.”"
     
      
       Contract No. DA-36-1O0-CIVENG-56-146.
     
      
       The contract amount was $742,176.60.
     
      
       Opinion altered pursuant to Order of concurrent date.
     
      
       Contract No. DA-36-109-CIVENG-57-205.
     
      
       Plaintiff’s bid was in the amount of $6,304,462.70. The GoTernment had estimated the cost at $8,013,944.00. Six other bids ranged from $7,317,778.61 to $12,128,833.50. The intermediate amounts were: $7,336,934.00, $7,442,499.-00, $8,855,415.00, and $10,843,119.50.
     
      
       40 U.S.C. 276a.
     
      
       Standard Eorm 23A, of March 1953, prescribed by the General Services Administration, General Regulation No. 13. Cf. 41 U.S.C. Appendix, § 54.13, Art. 17.
     
      
       Following is more of the text of Article 20 of the General Provisions: “(a) All mechanics and laborers employed or working directly upon the site of the work will be paid * * * the full amounts due at time of payment, computed at wage rates not less than those contained in the wage determination decision of the Secretary of Labor which is attached hereto and made a part hereof, regardless of any contractual relationship which may be alleged to exist between the Contractor or subcontractor and such laborers and mechanics; * * * (b) In the event it is found by the Contracting Officer that any laborer or mechanic employed by the Contractor or any subcontractor directly on the site of the work covered by this contract has been or is being paid at a rate of wages less than the rate of wages required by paragraph (a) of this clause, the Contracting' Officer may (1) by written notice to the Government Prime Contractor terminate his right to proceed with the work, or such part of the work as to which there has been a failure to pay said required wages, and (2) prosecute the work to completion by contract or otherwise, whereupon such Contractor and his sureties shall be liable to the Government for any excess costs occasioned the Government thereby. * * *”
     
      
       Plaintiff’s contention is that for the purposes of its contract “Heavy Construction” and “Highway Construction” were one and the same, ünder the wage rates of plaintiff’s union contract with the District 50 union they were the same. See Findings 11 (b; and 17(a) infra. Plaintiff continually sought, however, to have the power equipment operators paid under the classification “Heavy and Highway Construction.” See Findings 19(a), 19(d) and 21(c) infra.
      
     
      
       Discussions had in the course of pretrial proceedings between the commissioner and the attorneys for the parties recognized that determinations by the Secretary of Labor of what rates of wages were prevailing were final and not subject to collateral attach.
     
      
       District 50 was organized along the lines of an Industrial union. It* membership and representation Included laborers, carpenters, and truck drivers, as well as operators of power equipment.
     
      
       The AFL Operating Engineers was a craft union. Its membership and representation were limited to power equipment operators.
     
      
       Wage rates for highway construction, Including power equipment operators engaged therein, remained lower than the rates demanded for power equipment operators engaged in Building Construction or Heavy Construction.
     
      
       Plaintiff was a member of the Associated Pennsylvania Constructors.
     
      
       Plaintiif was a District 50 contractor.
     
      
       Cf. finding 2(b).
     
      
       No. CIVENG 36 — 109—5T—92.
     
      
       This certification was in error. A minor portion (4 percent) of the project work was highway-type construction.
     
      
       At the appropriate place therein, plaintiff acknowledged receipt of Addendum No. 1.
     
      
       This contract (No. DA-36-109-CIVENG-57-198) was dated April 11, 1957. The executed contract was forwarded to the contractor under date of May 8, 1957. Notice to proceed was given on May 8. No power equipment operators were employed on the project before May 13,1957.
     