DEPARTMENT OF THE AIR FORCE
SAF/AQCR EASTERN REGIONAL OFFICE
In re request for review and reconsideration
of Wage Determination 94-2393 (Rev. 4)
for Pope AFB and Seymour Johnson AFB,
North Carolina
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Petitioner: Clarence D. Long, III, Esq., Department of the Air Force, Washington, D.C. Jesus N. Pernas-Giz, Ruth A. Paauwe, Department of the Air Force, Patrick AFB, Florida
For the Respondent: Carol Arnold, Esq., Douglas J. Davidson, Esq., Steven J. Mandel,
Esq., U.S. Department
of Labor, Washington, D.C.
FINAL DECISION AND ORDER
This case is before the Board on the petition of the Department of the Air
Force (Air Force) challenging Wage Determination (WD) 94-2393 (Rev. 4) applicable to service
contracts performed at Pope Air Force Base (AFB) and Seymour Johnson Air Force Base in
North Carolina. The Air Force seeks review of two final ruling letters issued April 30, 1998, by
the designee of the Administrator, Wage and Hour Division (Administrator), pursuant to the
Service Contract Act of 1965, as amended, 41 U.S.C. §351 et seq. (SCA or the
Act).
[Page 2]
The wage determination that is challenged by the Air Force covers a large
36-county area that includes 32 counties in North Carolina and four counties in South Carolina.
This territory represents a consolidation of three smaller geographical areas, each of which
previously had been subject to a separate SCA wage determination. The Air Force argues that
the consolidated wage determination does not comply with the SCA requirement that the Wage
and Hour Division predetermine wage rates that prevail in the "locality." As relief,
the Air Force requests that the Board direct the Administrator to issue new wage determinations
for the service contracts at Pope AFB and Seymour Johnson AFB that reflect wages prevailing
within an area limited to a reasonable commuting distance around each of those installations.
We have jurisdiction over the appeal pursuant to 29 C.F.R. §§4.56(b) and 8.1(b)
(1999).
This case had been consolidated with three other appeals, each involving
challenges to SCA wage determinations in the Puget Sound region. SeeDep't of the
Army, ARB Case Nos. 98-120, 98-121, 98-122 (Dec. 22, 1999). Oral argument in
all four cases was held on November 5, 1998. On July 15, 1999, the Board issued an order
severing this North and South Carolina wage determination challenge from the three Puget
Sound cases.
In this case, the Air Force criticizes the Administrator's decision to merge
the three survey areas that had been used previously, arguing that the Administrator made a poor
choice when deciding to join the data from the three urbanized areas, rather than altering the data
collection methodology or sources:11
1 Because the two Air Force facilities
involved in this case are in North Carolina, we refer to the challenged wage schedule as the
"southeastern North Carolina" wage determination, even though its wage rates also
apply to four South Carolina counties.
2 The North Carolina counties
are: Beaufort, Bladen, Brunswick, Carteret, Columbus, Craven, Cumberland, Dare, Duplin,
Greene, Harnett, Hoke, Hyde, Johnston, Jones, Lee, Lenoir, Martin, Moore, New Hanover,
Onslow, Pamlico, Pender, Pitt, Richmond, Robeson, Sampson, Scotland, Tyrrell, Washington,
Wayne and Wilson. AR Tab G. The South Carolina counties are: Dillon, Horry, Marion and
Marlboro. Id.
3 The BLS survey covered
Bladen, Brunswick, Columbus, Cumberland, Craven, Duplin, Jones, Lenoir, Onslow, Pender,
Sampson and Wayne Counties, all in North Carolina. AR Tab G.
4 References to the parties'
pleadings are abbreviated as follows:
Air Force May 18, 1998 letter requesting
Board review of Apr. 30, 1998 rulings . . . . . . . . . . . . . .Pet. for Rev.
Statement of the Acting Administrator in
Response to Petition for Review . . . . . . . . . . . . . . . . . .Resp. Brief
Petitioners['] Response to Statement of
the Acting Administrator in Response to
Petitioners['] Request for Review . . . . . . . . . . . . . . . . .Reply Brief
5 July 20, 1998 letter from
Corlis Sellers, National Office Program Administrator, to Clarence D. Long, III, Esq., attached to
July 22, 1998 letter from Carol Arnold, Esq., to M. Jo Joyce, Executive Director, ARB
(Supplemental Ruling 7/20/98).
6 With regard to the
Administrator's failure to address significant elements of the Air Force's request for review and
reconsideration, we note generally that it is important for the Administrator to consider and
respond to the major substantive arguments and evidence submitted by parties who are seeking
administrative action, for two reasons. First, it is important that federal officers be responsive to
their constituents whether they be workers, companies, government agencies or the public at
large simply as a matter of good governance. See Dep't of the Army, slip op. at 10 n.8.
Second, and more important, the Administrator must address thoroughly the points raised by the
parties so that the Board can evaluate the soundness of the Administrator's decisions and policies,
based directly on the text of the Administrator's final decisions, rather than relying upon post-hoc
explanations offered by the Administrator's counsel.
7 For an extended discussion of
the OMB standards for defining metropolitan areas, see Dep't of the Army, slip op. at 4-
6.
8 Oddly, the Administrator's
final decision letters defend the southeastern North Carolina wage determination by declaring
that "The BLS survey . . . is statistically designed to represent firms in a metropolitan area,
exclusive of the Government sector and those firms engaged in the construction industry."
AR Tabs I, J. Although the prior BLS surveys were centered on the three individual
metropolitan areas in this North Carolina region, there is no evidence suggesting that the 1997
12-county BLS survey reflects a single metropolitan area. The Administrator did not argue to the
Board that the BLS survey area encompasses a single metropolitan area; we infer that this
position has been abandoned.
9 The BLS survey underlying
the wage determination in this case is conducted pursuant to a contract with the Division. Resp.
Brief at 26; see AR Tabs T, U, V.
10 The locality regulation was
redesignated as 29 C.F.R. §4.54 in 1996. 61 Fed. Reg. 68664 (Dec. 30, 1996).
11 The alternative data sources
supplied by the Air Force are discussed in the next section.
12 On April 13, 2000, the
Administrator submitted a motion requesting that the Board expedite consideration of this case.
Because we now issue the requested disposition, the motion is moot.
13 Board Member E. Cooper
Brown did not participate in the consideration of this case.
