With respect to Department of the Army
Contract No. DAAD05-96-D-7010 for
Services at Aberdeen Proving Ground,
Harford County, Maryland
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Petitioners: Charlotte Rothenberg Rosen, Esq. Dickstein Shapiro Morin & Oshinsky LLP, Washington, D.C.
For the Respondent:
Steven J. Mandel, Esq., Douglas J. Davidson, Esq., Lois R.
Zuckerman, Esq. U.S. Department of Labor, Washington, D.C.
DECISION AND ORDER OF REMAND
This case is before the Board on the petition of COBRO Corporation (COBRO)
seeking review of the May 2, 1997 final ruling issued by the Administrator, Wage and Hour Division
(Administrator), pursuant to the McNamara-O'Hara Service Contract Act of 1965, as amended, 41
U.S.C. §351, et seq. (SCA or the Act). See 29 C.F.R.
§§8.1(b)(6), 8.7(b) (1998). COBRO challenges the Administrator's decision that
employees performing work in the conformed classification of Data Collector/Coordinator under
Contract No. DAAD05-96-D-7010 at the Aberdeen Proving Ground (APG), Harford County,
Maryland should be paid $13.34 per hour.
[Page 2]
In this decision, we first review briefly the process for determining wage rates
under the Service Contract Act and its implementing regulations, followed by a statement of the facts of
the case. We conclude with our analysis of the legal issues presented by the parties. For the reasons
set forth below, COBRO's petition is denied in part and granted in part, and the case is remanded to
the Administrator.
WAGE DETERMINATION AND CONFORMANCE PROCEDURES
Under the Service Contract Act, the Secretary of Labor is responsible for
determining the minimum wage rates to be paid to various classifications of service workers who may
be employed on service procurement contracts subject to the Act. 41 U.S.C. §351 (1994).
The minimum wage and fringe benefit rates are based either on the locally prevailing rates for service
workers, or the rates in any collective bargaining agreements that already may be in effect governing the
pay of the workforce at the facility. Id. Prior to entering into a service contract, a contracting
agency is required to notify the Department of Labor's Wage and Hour Division of the various
classifications of workers that will be employed on the procurement, typically submitting a Standard
Form (SF-)98 (Notice of Intention to Make a Service Contract) and SF-98A. 29 C.F.R. §4.4
(1998); see also 48 C.F.R. Part 22, Subpart 22.10 (Federal Acquisition Regulations) (1997).
In response to the contracting agency's request, the Wage and Hour Division issues a wage
determination identifying the minimum hourly wage and fringe benefits that must be provided to the
classifications of workers employed on the contract. 29 C.F.R. §4.3 (1998).
1 This information is provided on the SF-
1444, Request for Authorization of Additional Classification and Rate. The form includes a provision
for the signature of the employee, indicating whether the employee agrees or disagrees with the
employer-proposed wage rate. See, e.g., Tab D of the Administrative Record.
2 The abbreviation
"AR" refers to documents found in the Administrative Record. Those documents are
identified by AR tab, and page number where possible; when necessary, a brief description of the
document has been provided for clarity. Citations to the parties' pleadings are abbreviated as follows:
Pet. for Rev. COBRO Corporation's Petition for Review
Am. Pet. for Rev. COBRO Corporation's Amendment to Petition for
Review
Brief in Supp. COBRO Corporation's Brief in Support of Its
of Pet. for Rev. Petition for Review and COBRO's Amendment
to Petition for Review
Reply Brief COBRO Corporation's Brief in Reply to Acting
Administrator's Statement in Opposition to
Petition
[First] Suppl. COBRO Corporation's Supplement to Reply
Reply Brief Brief,filed Mar. 27, 1998
Second Suppl. COBRO Corporation's Second Supplement to Reply
Reply Brief Brief, filed July 22, 1998
Resp. Brief Statement of the Acting Administrator in
Opposition to Petition for Review
COBRO filed a Motion for Leave to Submit a Reply Brief Exceeding the Page
Limitation; that motion is hereby granted. This decision reflects consideration of the Reply Brief in its
entirety, as well as the Supplement to Reply Brief that was filed by COBRO on March 27, 1998, and
the Second Supplement to Reply Brief that was filed by COBRO on July 22, 1998.
3 Tab D is comprised, in part, of
several exhibits that were initially submitted to the Administrator as attachments to a letter from
COBRO dated March 14, 1997, and which are identified as "COBRO exhibits" in the
Administrative Record. The numbered exhibits found at Tab D are referred to in this decision by tab
and exhibit number, for example, "Tab D/1."
5 Position descriptions for typical
classifications that are listed on the wage determination are found in the Wage and Hour Division's SCA
Directory of Occupations (SCA Directory). WD 87-0357 (Rev. 10) contained a position description
for each job classification not listed in the SCA Directory, including the Data Collector job title. AR
Tab D/1.
6 Although the record contains
statements by the contracting officer expressing uncertainty whether the duties of the Data Collector
and the Data Coordinator had been merged before the DynTel contract was completed, the
later report of the Wage and Hour investigator indicates that employees were working in a combined
Senior Data Collector and Data Coordinator position under the DynTel contract during 1995. AR Tab
H, Narrative Rept. at 2; Tab H, S. Kelly ltrs. of 10/1/95, 3/13/96, 5/14/96. The report states that the
employees performing in the combined data collector/coordinator position were Senior Data
Collectors, who continued to receive the Senior Data Collector wage. Id. at 4.
7 The Army and the predecessor
contractor, DynTel, had agreed that workers under the prior contract would be employed under these
four classifications, but only one, Data Collector, was included in the wage determinations that were in
effect over the course of the DynTel contract. AR Tab D/15, S. Kelly ltr. of 5/14/96 at 2.
The wage rate for Data Collector in the 1993-94 wage determination, WD 87-0347 (Rev.
9), corresponded to the lowest-paid Junior Data Collector classification. Id. The decision to
subdivide the "Data Collector" job title into three levels (Junior, Intermediate and Senior),
with premium pay for the higher-classified data collectors, was an ad hoc arrangement
negotiated between the Army and DynTel. AR Tab H, Narrative Rept. at 3-4; see AR Tab
D/15.
Although not an issue in our review of COBRO's conformance request in this
case, we note that the Secretary's regulations implementing the SCA require contracting agencies to list
all classes of employees that will be employed on the service contract. 29 C.F.R.
§4.4(b) (1998). The listing of all job classifications by the contracting agency permits the
Secretary to determine appropriate minimum wage levels in a timely fashion. The job classification and
rating issues that are central to the matter now before the Board might have been framed differently if
the Army earlier had asked the Labor Department to issue wage determination rates for all three of the
Data Collector classifications, as required by the SCA regulations. If the Army, during the prior
procurement contract, had indicated to the Wage and Hour Division that there were three levels of
Data Collector and a Data Coordinator with differentiable job duties, the Division would have had an
opportunity to perform an appropriate assessment of the job titles and issue appropriate SCA minimum
wage rates, thereby developing a better record with regard to these site-specific job classifications.
8 The Wage and Hour
investigator's report indicates that COBRO classified the employees in the Data Collector/Coordinator
position as General Clerk II and paid them $7.30 per hour, but that "[m]ost [of those employees]
were raised to $7.60 an hour after the contract commenced." AR Tab H, Narrative Rept. at 2;
see AR Tab L.
9 We cite regulatory provisions
as currently codified in Title 29 of the Code of Federal Regulations. We note, however, that former
Sections 4.52 through 4.55 were redesignated as Sections 4.53 through 4.56 in December 1996,
without substantive change. 61 Fed. Reg. 68647, 68664 (Dec. 30, 1996).
10 COBRO attached a variety of
documents to its pleadings as exhibits, including many documents that were not before the
Administrator as part of the Administrator's conformance deliberations. The Board's review of the
Administrator's ruling is in the nature of an appellate proceeding, and we generally focus our attention
on the formal administrative record in this case, i.e., the materials that were before the
Administrator. 29 C.F.R. §8.1(d)(1998); Harbert International, Inc., Case No. 91-
SCA-OM-5, Sec. Dec., May 5, 1992, slip op. at 6. In its submissions before this Board, COBRO
has provided support for its argument that its submission of the exhibits at this stage, rather than when
the matter was before the Administrator, is justified. Id. In the interest of administrative
efficiency, we have reviewed the exhibits to determine whether any of the evidence should have been
considered by the Administrator; if so, it is possible that the disclosure of additional evidence might
interfere with our review of the May 2, 1997 ruling. Cf.Mercury Consolidated, Inc.,
Case No. 88-SCA-OM-2, Dep. Sec. Dec., Mar. 23, 1988 (remanding to Administrator for
review of evidence not previously available that was submitted on appeal). As discussed in the body of
our decision, we conclude that none of the exhibits submitted by COBRO directly to the Board
required consideration by the Administrator. On remand, however, the Administrator is free to
consider any of the COBRO exhibits that he deems relevant to the conformance request.
11 General Clerk II is a standard
classification (number 01116) found under the Administrative Support and Clerical category of the
Wage and Hour Division's SCA Directory of Occupations. AR Tab H, Conformance of Data
Collector/Coordinator at unnumbered p.2. The Directory provides the following description of the
General Clerk II's duties:
Performs a combination of clerical tasks to support office, business, or
administrative operations, such as: maintaining records, receiving, preparing, or verifying
documents; searching for and compiling information and data; responding to routine
requests with standard answers (by phone, in person, or by correspondence). The
work requires a basic knowledge of proper office procedures. Workers at levels I, II,
and III follow prescribed procedures or steps to process paperwork; they may perform
other routine office support work, (e.g. typing, filing, or operating a keyboard
controlled data entry device to transcribe data into a form suitable for data processing).
Workers at level IV are also required to make decisions about the adequacy and
content of transactions handled in addition to following proper procedures. Clerical
work is controlled (e.g. through spot checks, complete review, or subsequent
processing) for both quality and quantity. Supervisors (or other employees) are
available to assist and advise clerks on difficult problems and to approve their
suggestions for significant deviations from existing instructions.
AR Tab H, Conformance of Data Collector/Coordinator at unnumbered p.2.
12 As COBRO notes and as
previously discussed at n.7 supra, the record indicates that the Army had not sought approval
of the three additional data collection positions (Intermediate and Senior Data Collector and Data
Coordinator) from the Wage and Hour Division, as required by the regulations at 29 C.F.R.
§4.6(b)(2). AR Tab H, Narrative Rept. at 3-4. Although this omission is unfortunate, the
history of the data collection classifications under the DynTel contract ultimately is irrelevant to the
question of the actual skills and duties of the Data Collector/Coordinator position under the COBRO
contract and whether those skills and duties require the position to be conformed as a classification
separate from the General Clerk II position.
13 For example, COBRO's
affidavits state that the Data Collectors/Coordinators do not (a) supervise other data collection
employees, (b) test the equipment, (c) undergo a "technical course of study" regarding the
operation and maintenance of the equipment being tested, or (d) interpret test results. Reply Brief exh.
3 at 2-4, exh. 4 at 2-5. However, the March 25, 1997 ruling does not indicate that the Administrator
relied on any of these duties when making the conformance determination. AR Tab C at 1-2; Tab H,
Narrative Rept. at 2-5, attachment. Furthermore, neither the detailed Data Collector/Coordinator
position description that was related by the data collection employees to the investigator nor the more
general position description issued by the Army as part of the contract solicitation indicates that the
Data Collectors/Coordinators supervised other employees, actually tested equipment, interpreted test
results or participated in technical training courses regarding the equipment. AR Tab H, Narrative
Rept. attachment; Tab H, Tech. Exh. 6, Job Descriptions. Although the affidavits indicate that the Data
Collector/Coordinator employees had not been attending scoring conferences, the Administrator's
ruling does not indicate that attendance at such conferences was a determinative factor in the
conformance decision below. AR Tab C; Tab H, Narrative Rept. at 3-4; cf. Harbert
International, slip op. at 15-16 (contractor's contention that mason classification was erroneous
because mason did no welding rejected because "welding requirement did not play a major
role" in Administrator's conformance ruling).
In addition, the affidavits' statements that the continuous testing of some items for
weeks or months allows the Data Collector/Coordinators to become familiar with the item being tested
and therefore to "fill out their forms with minimal effort," Reply Brief exh. 3 at 4, exh. 4 at
5, is consistent with the contracting agency's requirement that the Data Collector/Coordinator
candidates have a specified level of experience in data collection, AR Tab H, Job Description at p. C-
25, ¶C.5.4.2.2. Typically, the more experience an employee has in performing a particular task,
the more proficient the employee becomes.
14 If anything, the Handbook
supports the Administrator's conclusion that the Data Collector/Coordinator's work goes beyond that
of the General Clerk II. The Handbook is prefaced by statements regarding the necessity for the
"complete and detailed reporting of information" to assist the Army in its research and
development efforts. Brief in Supp. of Pet. for Rev. exh. 6 at 2. The Handbook states that forms
"must be accurately and thoroughly completed" and that narrative accounts "must be
clear, simple, concise, and completely describe the action that
has occurred (i.e. incident, maintenance, servicing, missions, SSP remarks, BIT, failure, etc [.])."
Id. (emphasis in original). The complexity of the instructions, the required alphabetic forms,
and the number of codes and technical terms provided in the Handbook clearly do not support
COBRO's position on this issue.
15 According to the contract
solicitation Job Description, Data Collectors/Coordinators are expected to have "four years
experience in data collection or automotive mechanics. A two year degree in a technical area can
substitute for three years experience." AR Tab H, Job Description at p. C-25, ¶C.5.4.2.2.
In contrast, the General Clerk II classification from the SCA Directory is described as requiring only
"a basic knowledge of proper office procedures." AR Tab H at unnumbered p.2.
16 The employees' statements
regarding the work environment are consistent with contract solicitation documents issued by the
contracting officer. For example, the Statement of Work indicates that the contractor shall be
responsible for "data collection support on a wide variety of automotive, combat, electronic,
general equipment, and ordnance materiel undergoing extensive testing." AR Tab L, Job
Description, p. C-21 at ¶C.5. The Job Description for the contract also requires the contractor
to provide "protective equipment, such as safety shoes, hearing protection, safety glasses, hard
hats, etc." Id. at ¶C.4.9.
17 Not only is COBRO's assertion
unsupported, it is also contradicted by one of the exhibits proffered by COBRO in this appeal. The
excerpt from the Office of Personnel Management guidelines for classification of employees working
under the Tax Examining Series addresses the Physical Demands and Work Environment factors that
are routinely considered under the point system used for classifying Federal employee jobs. Brief in
Supp. of Pet. for Rev. exh. 4 at 81; see 29 C.F.R. §4.6(b)(2)(iv) (1998) (providing that
"[s]tandard wage and salary administration practices which rank various job classifications by
pay grade pursuant to point schemes or other job factors . . ." and "the way different jobs
are rated under the Federal pay systems (Federal Wage Board Pay System and the General Schedule)
. . ." may be utilized in conformance determinations).
18 COBRO raises other tangential
arguments with regard to classifications found in wage determination WD 94-2247 (Rev. 2), and
particularly in reference to the Administrator's declared view that the Data Collector/Coordinator
position could have been assigned an hourly wage rate of $14.97, equivalent to the wage rate of the
GS-8 equivalent Secretary V position. For example, COBRO contends that the position of Medical
Laboratory Technician (a GS-4 equivalent), included in the wage determination with a $7.88 hourly
wage, is more comparable to the skills required of the Data Collector/Coordinator than is the Secretary
V position. Brief in Supp. of Pet. for Rev. at 24-25. It is not the Board's role, however, to assess
competing job classifications from the wage determination and decide whether the Administrator made
the optimum choice. If the Administrator found that the Data Collector/Coordinator position is a GS-8
equivalent in its skill level, and can justify this finding, then it plainly would have been inappropriate to
issue a conformed wage rate based on the lower-skilled Medical Laboratory Technician job.
Similarly, COBRO takes issue with the Administrator's March 25, 1997
statement that "the more traditional method of slotting the Data Collector/Coordinator to the
Secretary V, the only GS-8 equivalent within the broad occupational category of Administrative
Support and Clerical in Wage Determination (WD) 94-2247 (Rev. 2), . . . would have yielded an
hourly wage rate of $14.97." AR Tab C. COBRO argues that the Secretary V classification
clearly requires a higher level of analytical skills, judgment, and discretion than the Data
Collector/Coordinator position. Pet. for Rev. at 2; Brief in Supp. of Pet. for Rev. at 18-21. Here
again, the central question is whether the Administrator has made a reasonable determination that the
Data Collector/Coordinator is comparable in skill level to GS-8 classification positions, and articulated
the basis for that determination. It is not the Board's role to substitute our judgment in such matters for
the Administrator's.
