the concept of 'the site of the work' is a matter of minor or no significance. The work performed at the borrow pit or the waste area is as much a part of the site of the prosecution of the work as the right-of-way itself.
"Now this 'prima facie' case, based as it is upon what is the normal practice and what is the generally understood situation in the construction industry, is only a 'prima facie' situation. It is not conclusive. It may be explained, and it may be rebutted. In making each wage determination or in determining whether the standards of the Davis-Bacon and related acts are applicable, the Department of Labor and the agency have an obligation to examine each case on its own facts to see whether there are special circumstances which take the situation out of the normal rule. And if an aggrieved party believes that the Department or the agency has not properly applied the rule in the particular case he would have the right to explain the situation and to establish that the usual practices in the industry did not obtain in the particular case."
As a footnote, the Board set out the following:
"In what ways could the 'prima facie' case be rebutted? The Wages Appeals Board thinks that the following situations, under appropriate circumstances, standing alone or together, could raise serious questions whether the supplier was not a true materialman:
" (1) A showing that in the particular locality,
in bidding a job, prime contractors do not normally
contemplate that necessary highway cut and fill
will be performed by the successful bidder or by
a similar highway construction organization.
(2) The type of fill required is of such an unusual nature or is so restricted in the locality that the only way the prime contractor can get it is from operators who control the sole sources of supply and who will supply it only under their own normal and usual methods of doing business as commercial
(3) The amount purchased is truly in a commercial quantity from an established quarry operated by a commercial operator under his own normal and usual practices.
E-202-8 Willingness to sell to others: The Department of
Labor has introduced a concept relating either to the oppor-
tunities for additional sales to other than the construc-
tion contractor or subcontractor when deciding upon the
location of a facility near a covered project, or to oppor-
tunities for and willingness to make additional sales arising
after the decision to locate the facility, or both.
Willing to Sell, but Only Token Sales Made: Prior to opening of bids on a Kentucky Federalaid project one of the bidders gave a purchase order for crushed stone to be used on the project to an established Tennessee quarry operator. The purchase order was conditional upon award of the prime contract to the purchaser.
The purchaser was awarded the prime contract,
and the quarry operator installed a permanent
plant on concrete foundations on a site near
the project. Other projects on the same
Federal-aid highway were contemplated for
the project vicinity. Before actual crush-
ing operations started, the quarry operator
ran modest advertisements in newspapers in nearby towns offering to sell crushed stone. When crushing operations started, a salesman was engaged to sell stone to the general public.
At the time the coverage question arose no
sales had been made to the general public and
no deliveries of stone had been made for direct
use on the project. A small quantity of stone
had been sold to the prime contractor for use
other than directly on the project. The
prime contractor had also purchased stone for
this nonproject purpose from two other stone
suppliers in the area.
The Solicitor of Labor decided that the quarry
was initially opened to serve the project in
question, but that the operator, by (1) adver-
tising in newspapers, (2) engaging a salesman,
(3) making an actual sale of stone for non-
project use, and (4) installing the crush-
ing equipment on permanent foundations had
demonstrated a willingness and an ability
to sell stone to the general public as well
as for use on other potential area projects,
Federal-aid and non-Federal-aid. His operation
was therefore one of supply, not of subcontract.
Willing to Sell; Some Sales Made; Others in
Offing: An established quarry operator
initially opened a quarry contiguous to a
Federal-aid right-of-way for the exclusive,
or nearly-exclusive, purpose of serving the
Federal-aid project. The Solicitor of Labor
ruled that the quarry operator's subsequent
actions, however, entitled him to be considered
a materialman, not a subcontractor. The Solic-
itor noted "the firm is presently furnishing
materials from this facility for use on other
projects and appears, moreover, willing and
able to sell to others (noncovered projects)
who will buy." It was further noted that
the operator "has been advertising and has
been actively soliciting sales as a general
supplier of materials from this quarry, and
"has sold materials to various customers as
evidenced from its daily sales records" and
"has made a contract (for sale on a noncovered
project) of 100,000 tons of crushed stone."
E-202-8.3 Pits Owned By Contracting Authority; Contract Specifies Pits as Sole Source: The Solicitor of Labor ruled no coverage in a situation where "a County on Federal-aid secondary highway projects stipulates (in the construction contract) that it will provide the aggregate from pits which are County owned and used for county work. The material from the pits will be processed by the contractors. However, the contractors make contracts with established material producers and suppliers to process the material at the pits."
SPECIFIC CLASSES OF EMPLOYEES
E-203-1 General: The question of coverage of specific classes of employees requires consideration of the following basic factors:
The definitions contained in the Department of Labor Regulations, part 5.
(b) Who and what their employer is.
The nature of their (the employees)
duties. Generally speaking, the term
"laborers and mechanics" is construed
to include at least those workers whose
duties are mainly manual or physical in
nature as distinguished from mental or
managerial. Laborers and mechanics
employed by contractors and subcontrac
tors at the project site are clearly
subject to the protection of the Act.
Employees of Established Material Supplier
Discharge Concrete in Road Forms: Truckdrivers
employed by an established concrete supplier
deliver transit-mixed concrete to Federal or
federally-aided projects in the supplier's
own trucks. The concrete is discharged be-
tween road forms by the truckdrivers and
spread and processed by the employees of the
project contractor. It was held, in reference
to the foregoing facts, that since their
employers were regular suppliers who furnished
standard materials for the work, and were
not engaged in performing a portion of the
original contract, and further, since the
drivers perform no work at the site except
that which was required for making normal
deliveries, the drivers were not subject to
the coverage of the Davis-Bacon and related
Acts.
Employees of Quarry Deliver Stone to Projects:
Truckdrivers employed by an established quarry
supplier deliver 24-inch aggregate to a project
in trucks owned by the quarry supplier. The
aggregate is spread, shaped and compacted by
employees of the Federal-aid project contrac-
tor. For the reasons stated under example
E-203-2.1 above, the drivers here were held
not covered by the Davis-Bacon Act.
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