United Government Security Officers of
America, Local No. 78, ARB No. 98-154 (ARB Oct. 2, 1998)
U.S. Department of Labor Administrative Review Board
200 Constitution Avenue, N.W.
Washington, D.C. 20210
ARB CASE NO. 98-154
DATE: October 2, 1998
In the Matter of:
UNITED GOVERNMENT SECURITY
OFFICERS OF AMERICA, LOCAL 78
In re: Review and Reconsideration of
a Wage Determination for Court Security
Officers, Contract No. MS-98-D-0005
Dallas, Texas
ORDER OF DISMISSAL
Pursuant to the McNamara-O'Hara Service Contract Act of 1965, as
amended,
41 U.S.C. §351 et seq. (SCA)(1994) and 29 C.F.R. Parts 4 and 8 (1998), the
Administrative Review Board, United States Department of Labor, is in receipt of a Petition for
Review (petition) filed by United Government Security Officers of America, Local 78
(Petitioner),
seeking review of a ruling letter dated August 12, 1997, from the Wage and Hour Division. The
petition was filed on August 12, 1998. On August 20, 1998, the Board issued a Notice of
Appeal,
as well as a briefing schedule. The petition raises questions concerning wage determination rates
for court security officers in Dallas, Texas, between September 1993 and September 1997.
On September 4, 1998, the Acting Administrator submitted a motion to
dismiss the petition for lack of ripeness, and to suspend the briefing schedule. In support of the
motion to dismiss, the Acting Administrator avers that the Division's August 1997 letter did not
constitute a final decision of the Administrator under the applicable regulations. See 29
C.F.R. §8.1(b).
[Page 2]
Under the Secretary's SCA regulations, this Board has the discretion to
decline
review of petitions for various reasons, including a lack of timeliness or the nature of the relief
sought. 29 C.F.R. §8.6(a). In this instance, we find that it would be inappropriate to
review
the petition, and dismiss it for the following reasons.
First, the petition for review in this case was filed nearly a year after
Petitioner
received the Wage and Hour Division's August 1997 letter denying its request for review and
reconsideration. The regulations clearly require that a petition for review be filed within 20 days
after the Wage and Hour Division issues such a letter. 29 C.F.R. §8.3(a). The petition is
very
untimely.
Second, the primary remedy that the Petitioner seeks is an order from the
Board revising the wage determination retroactive to 1993, with an award of backpay to court
security officers working in Dallas. The remedy requested is beyond the Board's jurisdiction:
Where a petition for review of a wage determination is filed prior to award, exercise
of option, or extension of a contract, the Board may review the wage determination
after such award, exercise of option, or extension of a contract if the issue is a
significant issue of general applicability. The Board's decision shall not affect the
contract after such award, exercise of option, or extension.
29 C.F.R. §8.6(d) (emphasis added). Because the service contract (or contracts) at
issue
in this matter was awarded sometime in the past, the Board would be unable to award the back
pay
remedy sought. See, e.g., D.B. Clark III, ARB Case No. 98-106, Dec. and Order, Sep. 8,
1998; Fort Hood Barbers Assoc., ARB Case No. 96-181, Fin. Dec. and Order, Nov. 12,
1996, aff'd sub nom. Fort Hood Barbers Assoc. v. Herman, 137 F. 3d 302 (5th Cir.
1998);
Rams Specialized Security Service, Inc., BSCA Case No. 92-25, Dec., Sep. 23, 1992.
The Board declines to review the petition, which is hereby DISMISSED.
