Jurisdiction and Standard of Review
Pursuant to 29 C.F.R. § 8.1(b), the Board has jurisdiction to hear and decide "appeals concerning questions of law and fact from final decisions of the Administrator of the Wage and Hour Division or authorized representative" rendered under the SCA. See also Secretary's Order 1-2002, 67 Fed. Reg. 64,272 (Oct. 17, 2002). The Board's review of the Administrator's final rulings issued pursuant to the SCA is in the nature of an appellate proceeding. 29 C.F.R. § 8.1(d). The Board is authorized to modify or set aside the Administrator's findings of fact only when it determines that those findings are not supported by a preponderance of the evidence. 29 C.F.R. § 8.9(b). The Board reviews questions of law de novo. United Gov't Sec. Officers of America, Loc. 114, ARB Nos. 02-012 to 02-020, slip op. at 4-5 (ARB Sept. 29, 2003); United Kleenist Org. Corp. & Young Park, ARB No. 00-042, ALJ No. 99-SCA-18, slip op. at 5 (ARB Jan. 25, 2002). The Board nonetheless defers to the Administrator's interpretation of the SCA when it is reasonable and consistent with law. See Department of the Army, ARB Nos. 98-120/-121/-122, slip op. at 15-16 (ARB Dec. 22, 1999).
Statement of the Issue
Should the Board affirm the Deputy Administrator's final ruling classifying calibration technicians as MCT I, II and III, by using the Instrument Mechanic classification rate of pay as a benchmark?
Discussion
1. Pertinent legal authority
The conformance regulations at 29 C.F.R. § 4.6(b) (2) (i) – (vi) provide both procedural and substantive guidelines for adding a job classification to the wage
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determination that applies to a particular SCA-covered contract. The job classifications that are listed on the applicable wage determination function as standards for comparison with a proposed classification in two primary ways. First, if the skills and duties required of the proposed classification were encompassed by a classification already listed on the wage determination, the proposal to add the new classification through the conformance process will be denied. See, e.g., Burnside-Ott, No. 87-SCA-OM-2, slip op. at 6-10 (Dep. Sec'y Jan. 10, 1989). Second, if a proposed classification is determined to be necessary, the classifications and wage rates listed on the wage determination provide standards for comparison in determining the category into which the job falls and setting the proper wage rate for the new classifications. 29 C.F.R. § 4.6(b)(2)(i), (vi)(A); see COBRO Corp., No. 97-104, slip op. at 10 (ARB July 30, 1999); Russian & East European P'ships., Inc., No. 99-020, slip op. at 15-17 (ARB Oct. 15, 2001); Rural/Metro Corp., No. 92-27, slip op. at 7-10 (Bd. of Serv. Contract Apps., Mar. 26, 1993). The conformance regulations require that a proposed position be categorized and paid a wage that reflects an "appropriate level of skill comparison" between the position proposed for addition to the wage determination and those classifications already listed on the wage determination. 29 C.F.R. § 4.6(b) (2) (i); see 29 C.F.R. § 4.6(b) (2) (i); see 29 C.F.R. § 4.6(b) (2) (iv); COBRO Corp., slip op. at 22-23.
The Administrator is accorded broad discretion in establishing a conformed rate, "and his or her decisions will be reversed only if inconsistent with the regulations, or if they are ‘unreasonable in some sense, or . . . exhibit[] an unexplained departure from past determinations . . . .'" Environmental Chem. Corp., No. 96-113, slip op. at 3 (ARB Feb. 6, 1998) (quoting Titan IV Mobile Serv. Tower, No. 98-14 (WAB May 10, 1991).
2. Deputy Administrator's use of IM classification as a benchmark
The parties agree that a classification must be conformed to cover the work performed by the Petitioners at Marshall. In conforming the proposed MCT classification to the IM classification on Rev. 18, the Deputy Administrator used the "slotting" procedure. Slotting is a well established conformance procedure approved by the Board and its predecessors. See, e.g., COBRO, slip op. at 10; Biospherics, Inc., Nos. 98-141, 97-086, slip op. at 3 (ARB May 28, 1999); Burnside-Ott, slip op. at 6-10. Under the slotting procedure, "wage rates are derived for a classification based on a comparison of equivalent or similar job duty and skill characteristics between the classifications studied and those for which no survey data is available." 29 C.F.R. § 4.51(c). Here, the Deputy Administrator selected the IM classification as a benchmark classification.
The Petitioners contend that there is no reasonable relationship between the IM benchmark classification and the proposed MCT classification because the two jobs are "very different." According to the Petitioners, (1) the IM uses less complex equipment than the MCT uses, (2) the IM position requires a lower level of skill than the MCT classification, and (3) the two classifications have different primary duties.
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Our review of the Deputy Administrator's determination in a conformance action must focus on the Deputy Administrator's choice, and the rationale that he advanced to support it. In challenging the Deputy Administrator's conformance, the burden on a petitioner is not merely to prove that other choices were available – or perhaps even preferable – but to demonstrate affirmatively that the Deputy Administrator's choice was unreasonable. COBRO, slip op. at 22.
Here, the Petitioners have presented no convincing argument or factual support that would demonstrate that the levels of skill, experience, education, and training required of the IM are so dissimilar from those of the MCT that the Deputy Administrator's choice of benchmark classification was unreasonable. Therefore, we conclude that the Deputy Administrator's use of the IM as a benchmark for this conformance was reasonable. A comparison of the IM classification described in the SCA Directory and the proposed MCT classification described in ERC's conformance request reveals that both the IM and MCT perform calibration work and other work that involves the use of tools and precision instruments to repair, test, disassemble, reassemble, and inspect technical equipment. Contrary to the Petitioners' argument, the fact that the IM description states that the IM "may" calibrate does not render the choice of that classification unreasonable because the skills and duties of the IM and MCT need not be exactly the same for the IM to be used as a benchmark for the conformance. "[T]he conformance process does not require the exactitude that might be achieved in a de novo determination of prevailing wage rates." Biospherics, slip op. at 19.
The Petitioners contend that the ETM classification is a more appropriate benchmark for this conformance for several reasons. In this regard, the Petitioners rely on evidence that the Redstone Army Calibration Laboratory uses the ETM II classification for its calibration personnel and that a predecessor contractor at Marshall conformed its calibration workers to the Engineering Technician classification (ET I-II-III), a precursor to the ETM classification. The Petitioners also contend that other precision measurement equipment laboratories (PMEL) use the ETM classification for work similar to the Petitioners' work.
Evidence regarding wage determination actions in different locations, or actions involving other job titles in the same location, often has little relevance to our evaluation of the reasonableness of the Deputy Administrator's determination in an individual case. COBRO, slip op. at 22. In view of the narrow scope of the Board's review, the possibility that another classification might also be an appropriate benchmark is not grounds for reversal. Here again, we emphasize that it is the Petitioners' burden to demonstrate affirmatively that the Deputy Administrator's choice was unreasonable. Dyncorp; COBRO. It is therefore irrelevant that another choice might be available, or even preferable, as long as the Deputy Administrator's choice here is reasonable.
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Accordingly, use of the ETM classification on other contracts does not negate the reasonableness of the Deputy Administrator's determination on this contract.2
2. Deputy Administrator's use of federal wage grade equivalencies
Because the wage rate for the IM classification on Rev. 18 had a federal WG 10 equivalency, the Deputy Administrator assigned a WG 10 equivalency to the new ETM I classification. The Deputy Administrator then had to establish an appropriate pay relationship between the MCT I, II and III classifications. Using the Conformance Guide's "Schedule of Percentage of Wage Rate Differences by Grade," the Deputy Administrator created two new classes of ETM (ETM II and ETM III) at higher wage grades than the ETM I, to correspond with the higher levels of responsibility and complexity of duties performed by workers at this level. (AR, Tab J). In setting the rates of wage increase for the MCT II (WG 11) and MCT III (WG 12), the Deputy Administrator used the SCA Conformance Guide's schedule percentage rate of 5% for the increase between WG 10 and WG 11. But for the increase between WG 11 and WG 12 he used the higher rate (5%) proposed by ERC rather than the 4% increase used in the schedule.
The conformance methodology employed in this case comes within the Deputy Administrator's prerogative to rank classifications "by pay grade pursuant to point schemes or other job factors" and to obtain guidance "from the way different jobs are rated under Federal pay systems," including "[the] Federal Wage Board Pay System and the General Schedule." 29 C.F.R. § 4.6(b)(2)(iv)(A); see also Biospherics, slip op. at 18. It additionally incorporates a concept "[b]asic to the establishment of any conformable wage rate," i.e., "that a pay relationship should be maintained between job classifications based on the skill required and the duties performed." Id. Here, the skills and duties of the proposed MCT II and MCT III positions are at progressively higher levels than the MCT I; therefore, the MCT II is paid more than the MCT I, and the MCT III is paid more than the MCT II. Finally, the conformed wage rates are tied directly to rates listed in the wage determination. The Petitioners have failed to show that the Deputy Administrator's conformance choices were unreasonable or inconsistent with applicable law. Raytheon Sys. Co., No. 98-157, slip op. at 20 (ARB Apr. 26, 2000).
The Petitioners also challenge the Deputy Administrator's adoption of the IM hourly rate of $18.79 on Rev. 18 for the MCT I hourly rate. Because the WHD did not have direct survey data for the IM classification, the Deputy Administrator based the
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hourly rate on an average of survey data for all WG 10 occupations in the "Mechanics and Maintenance and Repair Occupations," except for the ETM III occupation, which was the highest paid WG 10 classification. The Petitioners contend that the WHD erred in setting the IM wage rate by using an average excluding the highest paid position because this methodology is not mentioned in the SCA Conformance Guide.
To the extent that his argument is, in effect, a challenge to the substantive correctness of the wage determination itself, it must fail as untimely. The regulation at 29 C.F.R. § 4.55(a)(1) precludes review of a wage determination after opening of bids, in the case of a competitively advertised procurement, or later than 10 days before commencement of a contract in the case of a negotiated procurement. Here, the issue is whether the disputed classifications are conformable and properly conformed, not whether the preexisting prevailing wage determination was correct. See CACI, Inc., No. 86-SCA-OM-5, slip op. at 17 (Dep. Sec'y Mar. 27, 1990).
Even if we were to accept this challenge to the IM wage rate, the WHD has offered a reasonable explanation for the exclusion of the ETM classification in computing the average of WG 10 pay rates. In determining the pay rate of the WG 10s on Rev. 18, the WHD used the 2002 Occupational Employment Statistics survey data for Huntsville, Alabama, which did not include any data for the ETM occupation. The ETM rates on Rev. 18 are an estimate of the median and mean rates for all levels within the ETM occupation, ETM I (WG 8), ETM II (WG 9) and ETM III (WG10). Supplemental Declaration of William W. Gross, Director, WHD Office of Wage Determinations. It was clearly within the Deputy Administrator's discretion to omit the ETM rates for the reason stated in the Supplemental Declaration.
Conclusion
The ERC employees' petition for review is DENIED, and the Deputy Administrator's final conformance ruling of July 19, 2005, is AFFIRMED because the decision is reasonable, consistent with the regulations and not an unexplained departure from past determinations.
SO ORDERED.
M. CYNTHIA DOUGLASS
Chief Administrative Appeals Judge
DAVID G. DYE
Administrative Appeals Judge
[ENDNOTES]
1 On December 7, 2005, the Deputy Administrator submitted a Motion to Submit Supplemental Declaration of William W. Gross together with the Supplemental Declaration of William W. Gross, Director of the Wage and Hour Division's Office of Wage Determinations. We grant that motion.
2 The Deputy Administrator retroactively conformed wage rates for Metrology/Calibration Technician services on Teledyne's prior contract with NASA (NAS8-97256). (AR, Tab D). NASA, however, refused to apply the retroactive conformance because the contract is in closeout. (AR, Tab C). The Board disagrees with NASA's decision, but lacks jurisdiction to compel NASA's compliance with the Deputy Administrator's request.
