of "site of the work" is permissible. As previously discussed, supra at 7-8, section 5.2(1)(2) offers a definition of "site of the work" which includes both functional and geographical elements. Therefore the regulation does not make the employment status of the worker, rather than the location of the job, determinative of coverage, and thereby conflict with the Midway decision. In fact, the Midway court explicitly refused to decide the validity of the regulation at 29 C.F.R. § 5.2(1)(2). Midway, 932 F.2d at 989, n.6; 991, n. 12.
Thus, the plaintiff has incorrectly concluded that the Midway court held that the phrase "site of the work" is unambiguous in all respects. A careful reading of the decision and the statute reveals that the exact geographical limits of the term "site of the work" are undefined. By leaving undisturbed the regulation set forth in Section 5.2(1), the Court of Appeals implicitly recognized that there is ambiguity in the phrase "site of the work" that Section 5.2(1) attempts to address.
(2) The Agency's Regulation Constitutes a Reasonable Interpretation of the Phrase "Site of the Work"
Having determined that the statute is unclear regarding the precise geographical location defined by the term "site of the work", the Court must proceed to the second step of the Chevron analysis to determine whether the Secretary's interpretation of the phrase, as embodied in the regulation, is permissible.
As previously explained, if a statute is silent or ambiguous with respect to a specific issue, the agency has the power to make policy choices that "'represent . . . a reasonable accommodation of conflicting policies that were committed to the agency's care by the statute.'" Chevron, 467 U.S. at 844-45 (citations omitted). The Court must accept the agency's interpretation of the statute if it is "reasonable and consistent with the statutory purpose." Ohio v. Dep't of the Interior, 279 U.S. App. D.C. 109, 880 F.2d 432, 441 (D.C. Cir. 1989) (citation omitted).
As the Court of Appeals has explained, the Davis-Bacon Act was enacted "to protect local contractors from being underbid on federally-funded construction projects by government contractors who based their bids on imported labor who would work for cheaper wages than those prevailing in the area". Midway, 932 F.2d at 986 (citations omitted). The Davis-Bacon Act is a remedial statute, designed not "to benefit contractors, but rather to protect their employees from substandard earnings". United States v. Binghamton Construction Co., 347 U.S. 171, 176-77, 74 S. Ct. 438, 98 L. Ed. 594 (1954). Consistent with this statutory purpose, the regulation defining "site of the work" "specifically prevents a government contractor from creating an artificial, independent off-site gravel pit and batch plant, and thus avoid the payment of Davis-Bacon wage rates to workers at that site." Def. Mot. for Summary Judgment at 14. This interpretation of the statute is reasonable, consistent with its legislative purpose, and, given the deference due an agency's interpretation of a statute, must be upheld. See Chevron, 467 U.S. at 844-45.
D. The Secretary's Claim for Back Wages Is Not Barred by the Two-Year Statute of Limitations Specified in the Portal-to-Portal Act
The plaintiff also contends that the defendant is prevented from withholding the funds at issue in this case because the administrative proceedings were commenced outside of the two-year statute of limitations set forth in the Portal-to-Portal Act. See 29 U.S.C. § 255. This argument is without merit. The Portal-to-Portal Act's two-year statute of limitations does not apply to administrative proceedings for withholding under the Davis-Bacon Act, because these proceedings are not considered actions for purposes of the Portal-to-Portal Act. See, e.g., Glenn Electric Co. v. Donovan, 755 F.2d 1028, 1033 n.7 (3d Cir. 1985); Unexcelled Chem. Corp. v. United States, 345 U.S. 59, 66, 73 S. Ct. 580, 97 L. Ed. 821 (1953).
Accordingly, for all of the reasons previously stated, the Court affirms the Wage Appeals Board decision that the Red Rock employees were entitled to prevailing wages in accordance with the Davis-Bacon Act. The back wages were properly withheld in accordance with the statute. Therefore the defendant's Motion for Summary Judgment must be granted, and that the plaintiff's Motion for Summary Judgment must be denied. The Court shall enter an appropriate Order on this date in accordance with this Opinion.
August 17, 1992
CHARLES R. RICHEY
UNITED STATES DISTRICT JUDGE
ORDER - August 18, 1992, Filed
In accordance with the Court's Opinion in the above-captioned case, filed on this date, and for the reasons stated therein, it is, by the Court, this 17 day of August, 1992,
ORDERED that the defendant's Motion for Summary Judgment shall be, and hereby is, GRANTED; and it is
FURTHER ORDERED that the plaintiff's Motion for Summary Judgment shall be, and hereby is, DENIED; and it is
FURTHER ORDERED that the above-captioned case shall be, and hereby is, DISMISSED from the dockets of this Court.
CHARLES R. RICHEY
UNITED STATES DISTRICT JUDGE