Federal judge affirms truck drivers’ absence from Davis-Bacon lanes

White House and Department of Labor (DOL) staff attempts to lower contractor margins and raise public-construction costs hit a roadblock late last month in U.S. District Court for the Northern District of Texas, Lubbock Division. Associated General Contractors of America-led plaintiffs prevailed in a challenge to three provisions in the DOL’s “Updating the Davis-Bacon and Related Acts Regulations” final rule, adopted in October 2023. Two provisions hit close to concrete, but appear to primarily impact contractors with integrated aggregate or asphalt production and hauling. They expanded Davis-Bacon Act (DBA) coverage—hence, mandatory adherence to DOL-calculated prevailing wage levels on federally funded projects—to truck drivers employed and material suppliers owned by general contractors or subcontractors.

“AGC members are adversely affected because they are either having to figure out a way administratively to track the truck drivers’ time spent on-site that is more than de minimis and pay the drivers the applicable DBA wage rates, or to apply the DBA rate for the entire time,” writes Senior U.S. District Judge Sam Cummings. “A contractor’s choice on compliance under this scenario may affect bids, and with the thin margins in the construction industry, those costs can be the difference between winning a bid and not.” The conditions surrounding the delineation of driver time on site, he adds, present contractors with a “Hobson’s choice,” which the Merriam-Webster Dictionary characterizes as “an apparently free choice where there is no real alternative.”

From AGC documents and plaintiff testimony, Judge Cummings determined that the DBA Updates’ material supplier provisions impact integrated operators. “AGC contractors typically have a material supply operation because it enables them to gain a competitive advantage over those contractors that do not have a material supply operation,” he observes. “Contractors that have expand[ed] to include commercial material supply are now competitively disadvantaged because they must pay prevailing wages and administer the DBA requirements where they use their own material supply operations on their projects, where their competitors who only provide material supply on the same project are not subject to the DBA under the final rule.” In each case, he notes, “work performed by the driver is the same.”

Responding to the Texas court’s granting of a preliminary injunction blocking DOL from enforcing the trucking and material supplier provisions, AGC cited a significant legal victory in ongoing efforts to protect members from overreaching federal regulations. “Our concern remains that the Labor Department is expanding the scope of the rule well beyond what Congress ever intended,” added CEO Jeffrey Shoaf. “This injunction restores the original intention of the Davis-Bacon Act.”

DBA prevailing wage coverage is confined to “mechanics and laborers employed directly on the site of the work” involving “construction, alteration, or repair, including painting and decorating, of public buildings and public work,” according to AGC vs. DOL case documents. “The function of ‘material delivery’ is not a ‘construction’ one within the meaning of DBA.” The trucking and material supplier provisions must be set aside, the court finds, because DOL exercised “its authority in a manner inconsistent with the administrative structure that Congress enacted into law … Presidents and their agencies do violence to the Constitution when they attempt to unilaterally amend Acts of Congress to suit their policy choices.”

Beyond imperiling a White House and DOL staff stunt intended to broaden an onerous, 1931 statute well past its sell by date, AGC and fellow plaintiffs have served up an important reminder of the separation of powers between the administrative, legislative and judicial branches.

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