Case No. 03-075

   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, 67 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. United States Dep't of Labor, 171 F.3d 58, 71 (1st Cir. 1999). However, conclusions of law are reviewed de novo. United Gov't Sec. Officers of America, Local 114, ARB Nos. 02-012 to 02-020, slip op. at 4-5 (ARB Sept. 29, 2003); 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 Department of the Army, ARB Nos. 98-120, -121, -122, slip op. at 34-36 (ARB Dec. 22, 1999) and the cases cited therein.

I. Whether, in ARB Case No. 02-085, the Board may review the Administrator's May 29, 2002 final ruling; whether FSSC's requests for review and reconsideration were untimely; and whether certain revisions to wage determinations may be retroactively applied.

II. Whether the Administrator acted reasonably in establishing the prevailing rates applicable to the Flight Simulator/Instructor (Pilot), Instructor, and Electronic Technician, Maintenance I, II, and III classifications.

III. Whether the Administrator acted reasonably in capping wage increases for affected classifications at 10% above rates in the predecessor wage determinations.

I. The Board may not review the Administrator's May 29, 2002 final ruling. FSSC's requests to the Administrator for review and reconsideration of the wage determinations were untimely. Retroactive revision of the wage determinations is not permitted.

   A. FSSC's Petition for Review in Case No. 02-085

   We must decline to review the Administrator's May 29, 2002 final ruling. The regulation governing the Board's review of wage determinations states:

Except as provided in paragraph (c) and (d) of this section, the Board will not review a wage determination after award, exercise of option, or extension of a contract, unless such procurement action was taken without the wage determination required pursuant to §§ 4.4 and 4.5 of part 4 of this title.

29 C.F.R. § 8.6(b).

   Here, the contract option was exercised (and option period commenced) on October 1, 2001. AR Tab A, p. 1. Since the Board did not receive FSSC's Petition for Review until June 18, 2002, we could not have acted before the October 1, 2001 deadline. Thus, because FSSC's contracts contained wage determinations as required, we may review the disputed wage determinations only if one or both of the exceptions apply. Neither exception applies here.

   The Board may review wage determinations after exercise of a contract option in certain situations involving a collective bargaining agreement. See 29 C.F.R. § 8.6(c). But FSSC employees were not working under collectively bargained wage rates and this exception does not apply. The other exception applies "[w]here a petition for review of a wage determination is filed prior to award, exercise of option, or extension of a contract," and "the issue is a significant issue of general applicability." 29 C.F.R. § 8.6(d) (emphasis added). But, as noted, FSSC filed its Petition for Review well after exercising the contract option. Therefore, we dismiss FSSC's Petition for Review in Case No. 02-085. Accord EG&G Technical Services, Inc., ARB No. 02-006 (June 28, 2002). Nevertheless, we discuss two remaining issues.

   B. FSSC's Requests for Review and Reconsideration in Case No. 02-085

(Emphasis added).

   Thus, though FSSC filed its requests with the WHD 11 days prior to the exercise of the contract option, the Administrator could not possibly consider these complex requests for review and reconsideration and substantively respond in the single day between the 11th and 10th days prior to exercise of the contract option.

   We addressed this very same situation in EG&G Technical Services, Inc., ARB No. 02-006 (ARB June 28, 2002). There, the service contractor submitted a request for review and reconsideration of a wage determination 11 days prior to the exercise of a new contract option period. The Board noted that in order to comply with the "10 days before . . . exercise of option" requirement, the Administrator would have had to act on the request on the same day that it had been received. The Board concluded that "[g]iven this abbreviated length of response time, the Administrator's inability to fully consider and respond to EG&G's request for reconsideration was quite reasonable, especially in light of 29 C.F.R. § 4.56(a)(2), which provides that the Administrator shall respond to such requests within thirty days." EG&G, slip op. at 6-7.

   Therefore, absent compelling circumstances (which do not exist here), an interested person filing an eleventh-hour complex request for review and reconsideration may not complain, as FSSC appears to do, that the Administrator should have ruled on its request more than 10 days before the contract period begins or the option is exercised or extended. Furthermore, unlike here, a late filer should also expect that the Administrator will not rule on its request. See 29 C.F.R. § 4.56(a)(1) ("In no event shall the Administrator review a wage determination . . . later than 10 days before commencement of a contract . . ., exercise of a contract option or extension.")

   Therefore, we conclude that though FSSC's requests were filed one day before the regulation specifically requires, they were filed too late for the Administrator "to review, analyze, and reach a decision concerning [FSSC's] requests, and notify the contracting agency about any possible revisions, prior to the October 1st date." AR I, Tab A at 1-2.

   C. Retroactive Relief

   FSSC contends that the "ARB has it in its power to remedy" the Administrator's "error" when she refused to apply the corrected wage determinations retroactively. See note 5, supra. Pet. Brief at 9. But we do not have the "power" to do this. Even if FSSC had filed timely requests for review and reconsideration and, pursuant to section 8.6(b), the Board had reviewed the wage determinations before FSSC exercised the option, we could not order retroactive relief even if we ruled in FSSC's favor. Section 8.6(d) of 29 C.F.R. specifically limits the effect of Board decisions on wage determinations: "The Board's decision shall not affect the contract after such award, exercise of option, or extension."

   In support of its argument that we should order retroactive application of the corrected wage determinations, FSSC relies on our decision in James A. Machos, ARB No. 98-117 (May 31, 2001). In Machos, the Board was also presented with a petition seeking review of the Administrator's methodology in determining the wage rate for the Flight Simulator/Instructor (Pilot) classification. Under that methodology, the Administrator had not applied any wage increase to the classification for two contract periods, based on a lack of wage data. The Board remanded the case to the Administrator to reconsider the Flight Simulator/Instructor (Pilot) wage rate in light of all other sources of wage data reflective of wage trends that could indicate patterns of wage increases in the particular locality. But the Board did not order retroactive application of the wage rates (in the event the Administrator, on remand, concluded that the wage rates be adjusted). Therefore, Machos does not compel us to order the retroactive relief FSSC seeks.

II. In Case No. 03-075, The Administrator exercised reasonable discretion in determining prevailing rates by using BLS data for the Instructor classification and by slotting FGE levels for the Flight Instructor, CBT Specialist/Instructor, and ETM series classifications.

   We noted that in her February 26, 2003 final determination, the Administrator declined to rule on FSSC's challenges to the accuracy of the FGE levels assigned to the Flight Simulator/Instructor (Pilot), Instructor, and ETM series classifications. She did so because she had fully addressed these issues in her May 29, 2002, final ruling and because FSSC had not presented new information. AR, Tab A at 2. However, in the February 26, 2003 determination, the Administrator in effect reaffirmed her earlier May 29, 2002 conclusions regarding the merits of FSSC's allegations. We will therefore address FSSC's arguments concerning the merits raised in Case No. 02-085, as applied to the contract period at issue in Case No. 03-075.

   The Administrator's first choice of methodology for determining prevailing wages is to rely on wage data that the Bureau of Labor Statistics (BLS), U.S. Department of Labor collects. Although other information may be consulted, regulations governing the procedures for making wage determinations make it clear that use of BLS data is the preferred methodology:

The minimum monetary wages and fringe benefits set forth in determinations of the Secretary are based on all available pertinent information as to wage rates and fringe benefits being paid at the time the determination is made. Such information is most frequently derived from area surveys made by the Bureau of Labor Statistics, U.S. Department of Labor, or other Labor Department personnel.

29 C.F.R. § 4.51(a) (emphasis added).

   Prior to FSSC's second round of requests for review and reconsideration (at issue in Case No. 03-075), the Administrator did not use BLS data for determining the prevailing rate for the Instructor classification. Rather, she used the "slotting" method, wherein the wage rate for the Instructor classification was derived from the rate assigned to the Computer System Analyst I position. However, for the Instructor classification, the WHD now uses BLS wage survey information "for occupations that fall within the category of ‘Training and Development Specialists' who ‘conduct training and development programs for employees.'" AR, Tab A at 2.

   FSSC objects to this change in methodology. It argues that the Training and Development Specialist occupational category is not appropriate for determining the prevailing wage of the SCA Instructor classification. It claims that the WHD did not take into consideration "the technical expertise and knowledge required to fulfill the Instructor position, as described in the SCA Directory." Pet. for Rev. at 7.

   The duties of the SCA Instructor classification and the BLS Training and Development Specialist are not congruent. However, the duties ascribed to the Instructor classification in the SCA Directory are those of a standard instructor whose central responsibility is to conduct generic instructional or training programs. The SCA Directory provides that an Instructor:

Teaches courses in one or more subjects in commercial, governmental, industrial or service establishments. Prepares instructional program in accordance with training or other course requirements, assembling materials to be presented. Instructs students in the theoretical and practical aspects covering the subjects being taught. Utilizes such teaching methods as individual coaching, group discussions, lectures, demonstrations, seminars, and workshops. Selects or develops teaching aids such as wall charts, prepared notes, tape recordings, radio, television, films, film strips, and training handbooks. Supervises practical work carried out by students, and assists them at points of difficulty. Tests students to evaluate their learning progress and to evaluate effectiveness of instruction. Compiles assessment report regarding each student. May arrange visits to or periods of employment in real-work situations to reinforce instruction.

AR, Tab X. Given this guideline describing the duties of an Instructor, we agree with the Administrator that the position is one that "essentially conducts a training or

development program." Stmt. of Adm. in Opp. to Pet. for Rev. at 12. Thus, the Instructor position is functionally the same as that of the BLS-surveyed position of Training and Development Specialist, since that category of worker similarly conducts training and development, i.e. teaches and instructs a broad variety of material organized into course work or other training and learning exercises.

   Other than pointing to the technical nature of the material handled by its Instructors (as well as attesting by affidavits to their higher levels of skill, training duties and experience), FSSC did not demonstrate either before the Administrator or this Board, that the skills and duties of an Instructor are either materially greater than or different from those of the BLS-surveyed Training and Development Specialist. Having failed to make such a showing, we conclude that the Administrator acted well within the broad discretion afforded her in administering the Act and reasonably declined to reconsider her decision to use the BLS data regarding the Training and Development Specialist for determining the Instructor classification's prevailing wage rate.

   FSSC argues that the Administrator is violating a long-standing practice by rejecting the methodology she previously used for the Instructor classification in favor of using the BLS data, which information, FSSC contends, has been available since 1999. Whether BLS data was previously available and not used by the Administrator is not a relevant consideration. By using the BLS data, the Administrator has merely employed the wage information which is preferred, i.e. that which BLS collects. Here, the BLS data for the Training and Development Specialist is appropriate for determining the Instructor's prevailing wage because both classifications train and instruct, and the Training and Development Specialist wage data collected by BLS is specific to geographical localities as required by the SCA. See 41 U.S.C.A. § 351(a)(1).

   The WHD has long slotted the Flight Simulator/Instructor (Pilot) classification (which is not surveyed by BLS) to the SCA Directory classification of Computer Systems Analyst (CSA) II, based on the Administrator's determination that these two classifications' levels of job skills and duties are similar. AR, Tab A at 2. CBT Specialist/Instructor (and Instructor, before the change to reliance on BLS data) was slotted to the CSA I classification, in order to maintain the relationship between the skill, duty and pay levels of the three types of FSSC instructors and trainers. Id.

   The issue concerning the proper FGE rating for Flight Simulator/Instructor (Pilot) has been before the Board twice. In both cases the Board rejected arguments that the Administrator abused her discretion in setting the FGE rating of the disputed classification at the CSA II level, i.e. GS-11.

   In James A. Machos, ARB No. 98-117 (ARB May 31, 2001), after noting that the slotting procedure, in general, has long been approved in SCA cases, the Board revisited its earlier opinion in D.B. Clark III, ARB No. 98-106 (ARB Sept. 8, 1998):

[I]n D.B. Clark III this Board was presented with precisely the same question concerning the Wage and Hour Division's having slotted the Flight Instructor classification at the GS-11 level. In that case, the petitioner had argued as does Machos here that the level of skills and training of the Flight Instructors [Flight Simulator/Instructor (Pilot)] required by the employer exceeded those of the GS-11 FGE of Computer Systems Analyst II, and that the Wage and Hour Division should therefore have slotted the Flight Instructor classification at a higher FGE level. However, as correctly noted by the Administrator before the Board in this case, "SCA wage rates are not based upon the training, experience, or education that an employer requires of an employee, but rather are based upon the duties and responsibilities required by the classifications at issue." [Citation omitted.] Machos' argument regarding slotting does not address the applicable legal standard under the SCA regulations.

    Moreover, not only has the Wage and Hour Division determined that Flight Instructors are appropriately classified at GS-11 level, but this ranking has the concurrence of the Office of Personnel Management (OPM), "which has substantial expertise in the field of personnel classification." D.B. Clark III at 5. The classification of job categories to FGE levels by OPM is based on objective and professional rating criteria; an OPM classification therefore provides very strong support for the Administrator's determination that slotting the Flight Instructor pay level to another position at the FGE level of GS-11 was proper, especially in the face of Machos' relatively "soft" and anecdotal information. Accordingly, we reaffirm our previous finding in D.B. Clark III that the GS-11 FGE classification of Computer Systems Analyst II is a proper level at which to slot the Flight Instructor classification.

Machos, slip op. at 8.

   FSSC has not persuaded us that the Administrator acted unreasonably in slotting the Flight Simulator/Instructor (Pilot) classification at the GS-11 level. To support its argument that the FGE levels are too low, FSSC attempts to embellish the job descriptions of its employees by adding duties and responsibilities not included in the definition of the classification contained in the SCA Directory. Pet. for Rev., Appendix Exhibits Q, R, S, T, U, V. However, these arguments miss the mark by not addressing the Flight Simulator/Instructor (Pilot) duties and responsibilities as listed in the SCA Directory referenced above. In short, FSSC's attempt to add duties (or assert higher levels of experience and training on the part of its service employees) does not explain why the disputed classifications' duties do not fit within the WHD's definitions in the SCA Directory. Again, SCA wage rates are not based on training, experience, or education but upon the duties and responsibilities the classification requires. See Machos, slip op. at 8; 29 C.F.R. § 4.51(c).

   We also conclude that the Administrator's methodology in slotting the CBT Specialist/Instructor classification to the CSA I classification to maintain a pay relationship was reasonable. In her May 29, 2002 ruling, the Administrator noted that FSSC had "not challenged the FGE for the SCA occupations" which included the CBT Specialist/Instructor. AR, Tab A at 4.

   FSSC's arguments regarding the Electronic Technician, Maintenance (ETM) series of jobs fail for reasons similar to those discussed concerning the Flight Simulator/Instructor (Pilot). FSSC relies upon the Engineering Technician occupational series in support of its request for increasing the FGE assigned to the ETM classifications. However, the Engineering series occupations are not properly comparable because, as the Administrator noted, the "SCA ETM job family is a blue-collar series included within the SCA maintenance and repair occupations." AR I, Tab A at 3-4. On the other hand, the Administrator points out that "the Engineering Technician VI (FGE-GS 11) … is required to exercise ‘creativity and judgment… and make decisions in situations where standard engineering methods, procedures, and techniques may not be applicable.'" Id.

   Therefore, the Administrator acted reasonably when she assigned the FGE ratings for the Flight Simulator/Instructor (Pilot), CBT Specialist/Instructor, and the ETM classifications because she properly compared and matched the duty and skill characteristics of those classifications to those classifications the BLS studied.

   III. Capping wage increases at 10% was a reasonable exercise of the Administrator's discretion.

   FSSC also challenges the Administrator's decision to cap wage determination rate increases at 10% above the prevailing rates contained in the predecessor wage determinations. FSSC argues that a 10% cap is "arbitrary" and "flies in the face of the requirement . . . that wages reflect those prevailing in the community." Pet. Brief II, at 7-8.

   The Administrator supported her ruling by stating that the 10% capping policy was implemented "in order to minimize disruption and promote predictability in the procurement process." AR, Tab A at 3. She also noted that this Board has previously affirmed the "general policy of capping wage increases to minimize the impact of new wage data . . . ." Id.

   Indeed, we have held that the Administrator's policy of generally limiting wage increases to 15% in succeeding wage determinations was "reasonable in most circumstances." D.B. Clark, III, slip op. at 8. And in affirming another 15% cap, the Board found that "the Administrator's 15% cap methodology is a reasonable transitional tool that is consistent with the Administrator's discretion under the Act, and also promotes a useful predictability in the procurement process." Dep't of the Army, slip op. at 26.

   Therefore, because we find that the Administrator's decision to impose a 10% cap is legally sound and otherwise reasonable, we must affirm her determination to cap wage increases at 10%. See Dep't of the Army, slip op. at 34-36.

   FSSC's Petition for Review in Case No. 02-085 is DISMISSED because Department of Labor regulations implementing the Act preclude us from reviewing a wage determination after the underlying contract option has been exercised. The Petition for Review in Case No. 03-075 is DENIED because the Administrator acted reasonably in determining the prevailing wage rates for the disputed classifications and in capping the rates at 10% above rates in the preceding wage determination.

   SO ORDERED.

      OLIVER M. TRANSUE
      Administrative Appeals Judge

      M. CYNTHIA DOUGLASS
      Chief Administrative Appeals Judge