The opinion of the court was delivered by: THOMPSON
This matter comes before the court on the cross-motions of the parties for summary judgment. Plaintiff is G & C Enterprises, Inc. Defendant is the Wage Appeals Board, U.S. Department of Labor. Plaintiff seeks review of an administrative decision pursuant to the Administrative Procedures Act, 5 U.S.C. § 701, et seq.
Plaintiff is a construction contractor covered by the Davis-Bacon Act, 40 U.S.C. § 276a, et seq. The Department of Labor has determined that plaintiff owes over $11,000 in back wages to its employees for fringe benefits for overtime hours worked. Plaintiff appealed the finding through administrative channels to the Wage Appeals Board ["the Board"]. After a hearing and argument, the Board upheld the agency decision. Plaintiff argues that the Board made an error of law in deciding that the Davis-Bacon Act requires an employer to provide fringe benefits for overtime work.
The Davis-Bacon Act establishes wage standards for construction workers hired by government contractors. It provides at 40 U.S.C. § 276a(a):
The advertised specifications for every contract in excess of $2,000, to which the United States . . . is a party, for construction . . . of public buildings . . . shall contain a provision stating the minimum wages to be paid various classes of laborers . . . which shall be based upon the wages that will be determined by the Secretary of Labor to be prevailing for the corresponding classes of laborers . . . employed on projects of a character similar to the contract work in the city . . . in which the work is to be performed . . . and every contract based upon these specifications shall contain a stipulation that the contractor . . . shall pay all . . . laborers . . . the full amounts accrued at the time of payment, computed at wage rates not less than those stated in the advertised specifications . . . .
Subsection (b) defines "wages," "wage rates," and "prevailing wages" as,
(1) the basic hourly rate of pay; and
(A) the rate of contributions . . . made to a trustee . . . pursuant to a fund . . . and
(B) the rate of costs to the contractor . . . in providing benefits to laborers . . . for medical or hospital care, pension . . . or other bona fide fringe benefits . . . .
Therefore, the statute has defined "wage" to be composed of both a per hour cash payment, plus a fringe benefit package. Subsection (b) provides, however, that the employer can satisfy the fringe benefit portion of the wage by either making contributions to a trust fund, by bearing the cost of a benefits program, or by paying the equivalent amount to the employee in cash.
On the face of the statute, the court finds nothing to suggest that when overtime pay is calculated, the "wage" would be calculated as a per hour cash payment, rather than a per hour cash payment plus fringe benefits as provided in the statute.
Work in excess of such standard work day or work week shall be permitted subject to the provisions of this section. For each workweek in which any laborer . . . is so employed, wages shall include compensation at a rate not less than one and one-half times the basic rate of pay for all hours worked in excess ...