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" involving the SCA. See also Secretary's Order 1-2002, Fed. Reg. 64,272 (Oct. 17, 2002). The Board's review of the Administrator's decision is in the nature of an appellate proceeding. 29 C.F.R. § 8.1(d). The Board shall 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). See Dantran, Inc. v. U.S. Dep't of Labor, 171 F.3d 58, 71 (1st Cir. 1999). However, conclusions of law are reviewed de novo. United Kleenist Org. Corp. and Young Park, ARB No. 00-042, ALJ No. 99-SCA-18, slip op. at 5 (ARB Jan. 25, 2002). The Board defers to the Administrator's interpretation of the Act when it is reasonable and consistent with law. See Dep't of the Army, ARB Nos. 98-120, 98-121, 98-122, slip op. at 34-36 (ARB Dec. 22, 1999).

   Whether the Administrator reasonably exercised her authority under the SCA in denying UGSOA's requests for substantial variance hearings.

Statutory Background

   Section 4(c) of the SCA provides:

No contractor or subcontractor under a contract, which succeeds a contract subject to this chapter and under which substantially the same services are furnished, shall pay any service employee under such contract less than the wages and fringe benefits, including accrued wages and fringe benefits, and any prospective increases in wages and fringe benefits provided for in a collective-bargaining agreement as a result of arm's-length negotiations, to which such service employees would have been entitled if they were employed under the predecessor contract: Provided, That in any of the foregoing circumstances such obligations shall not apply if the Secretary finds after a hearing in accordance with regulations adopted by the Secretary that such wages and fringe benefits are substantially at variance with those which prevail for services of a character similar in the locality.

41 U.S.C.A. § 353(c).

Gracey

   In Gracey, the Fourth Circuit majority held, that under Section 4(c), if the wage and benefit levels of a CBA are at least the same as those of its predecessor, "no power vests in the Secretary to set aside an arms-length collective bargaining agreement solely because wages are below the prevailing rate." Gracey, 868 F.2d at 677. In his dissent, Judge Phillips stated that because he found Section 4(c) was patently ambiguous, he would defer to the Secretary's "consistent" and "long-standing contrary interpretation" that permitted a substantial variance hearing when CBA wages were below the prevailing rate. Gracey, 868 F.2d at 677, 680-681. The Secretary of Labor, however, did not file a brief or participate in the Fourth Circuit proceedings. Gracey, 868 F.2d at 673, 677, 681 n.4.

Degree of Deference Owed to the Administrator's Final Rulings

   Although the Board is delegated authority and assigned responsibility to act for the Secretary of Labor in issuing final agency decisions in matters arising under the SCA, Secretary's Order 1-2002, Fed. Reg. 64,272 (Oct. 17, 2002), the Administrator, not the Board, has primary responsibility for implementing and enforcing the SCA. See Dep't of the Army, slip op. at 34. To that end, the Board and its predecessor agencies have extended broad deference to the Administrator's interpretations of the Act and its implementing regulations, so long as the Administrator's interpretation of the Act, policies, and determinations are consistent with the law and are reasonable. Dep't of the Army, slip op. at 34-36.

   Administrative interpretation or implementation of a particular statutory provision qualifies for deference when:

it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority. Delegation of such authority may be shown in a variety of ways, as by an agency's power to engage in adjudication or notice-and-comment rulemaking, or by some other indication of a comparable congressional intent.

U.S. v. Mead Corp., 533 U.S. 218, 226-227 (2001). See also Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). Even if the administering agency does not have any express delegation of authority on a particular question, "agencies charged with applying a statute necessarily make all sorts of interpretive choices, and while not all of those choices bind judges to follow them, they certainly may influence courts facing questions the agencies have already answered." Mead, 533 U.S. at 227.

   The measure of deference to an agency administering its own statute, absent an express delegation of authority on a particular question, has been understood to "vary with circumstances." Mead, 533 U.S. at 228. The reasonableness of the agency's view is judged according to many factors, including the quality of the agency's reasoning, the degree of the agency's care, its formality, relative expertness, whether the agency is being consistent or, if not, its reasons for making a change, and the persuasiveness of the agency's position. See Skidmore v. Swift & Co., 323 U.S. 134, 139-140 (1944). See also Morton v. Ruiz, 415 U.S. 199, 237 (1974); OFCCP v. Keebler, ARB No. 97-127, ALJ No. 87-OFC-20, slip op. at 17 (ARB Dec. 21, 1999). "The weight [accorded to an administrative] judgment in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control." Skidmore, 323 U.S. at 140. See also, e.g., Good Samaritan Hosp. v. Shalala, 508 U.S. 402, 417 (1993) ("[T]he consistency of an agency's position is a factor in assessing the weight that position is due.").

   For the foregoing reasons, the Administrator's November 1, 2001 and November 5, 2001 final rulings denying UGSOA's requests for substantial variance hearings pursuant to Section 4(c) of the SCA are VACATED. Accordingly, the Petitions for Review are GRANTED and these matters are REMANDED to the Administrator for further action consistent with this opinion, the SCA, and its implementing regulations.

   SO ORDERED.

      OLIVER M. TRANSUE
      Administrative Appeals Judge

      M. CYNTHIA DOUGLASS
      Chief Administrative Appeals Judge