Immigration And Naturalization Service, ARB Case No. 99-122 (ARB Mar. 31, 2000)

U.S. Department of Labor

Administrative Review Board 200 Constitution Avenue, N.W. Washington, D.C. 20210

ARB Case No. 99-122
DATE: March 31, 2000

In the Matter of:

IMMIGRATION AND
NATURALIZATION SERVICE

   In re: Review and Reconsideration
of Wage Rates for Detention Officers in
Union County, N.J., WD 94-2353, Rev. 9

BEFORE: THE ADMINISTRATIVE REVIEW BOARD

Appearances:
For the Petitioner:
    Gerald Riordan,
    U.S. Department of Justice, Immigration and Naturalization Service, South Burlington, Vermont

For the Respondent:
    Roger Wilkinson, Esq.; Douglas Davidson, Esq.; Steven Mandel, Esq.,
   U.S. Department of Labor, Washington, D.C.

For the Intervenor:
    Dannie B. Fogleman, Esq.,
   Ford & Harrison, LLP, Washington, D.C.

   This matter is before the Administrative Review Board (ARB) pursuant to the McNamara-O'Hara Service Contract Act of 1965, as amended (SCA or the Act), 41 U.S.C. §351 et seq. (1994), and implementing regulations set forth at 29 C.F.R. Parts 4 and 8 (1999). Petitioner Immigration and Naturalization Service (the INS) seeks review of a

final ruling by the designee of the Labor Department's Wage and Hour Deputy Administrator (Administrator) denying the INS's request for review and reconsideration of the Detention Officer wage rate contained in Service Contract Act Wage Determination (WD) 94-2353 (Rev. 9). We have jurisdiction over the appeal under 29 C.F.R. §§4.56(b) and 8.1(b) (1999).

   The INS operates a detention facility in Elizabeth, New Jersey, for aliens who are detained temporarily in the agency's custody. On June 19, 1998, the INS submitted a Standard Form (SF)-98, "Notice of Intention to Make a Service Contract and Response to Notice," to the Department of Labor's Wage and Hour Division giving notice that INS was soliciting bids from private service contractors to operate the facility for the temporary residential care and housing of detained aliens. The SF-98 submitted by the INS specifically indicated that workers in the "Detention Officer" job classification would be employed on the contract. Administrative Record (AR), Tab C, Attachment 1.

   In response to the INS's notice, the Wage and Hour Division issued several wage determinations. Among the wage determinations was Wage Determination 94-2353 (Rev. 9) (6/1/98), applicable to service contracts in the New Jersey Counties of Essex, Hudson, Morris, Sussex and Union. AR Tab D. Elizabeth, New Jersey, is in Union County. This wage determination included a $21.30/hr. wage rate for the Detention Officer job classification.

   WD 94-2353 was based on a 1995 Bureau of Labor Statistics (BLS) Occupational Compensation Survey for the Newark Primary Metropolitan Statistical Area, consisting of Essex, Morris, Sussex and Union Counties. AR Tabs A, E. The BLS Survey did not include published wage data for Detention Officers, one of the primary positions to be utilized in the solicited contract. However, because the Survey did include wage rates for Firefighter ($20.81/hr.) and Police Officer ($21.78/hr.) both protective service occupations with the same Federal grade equivalent 6 rating as Detention Officer the Wage and Hour Division imputed a wage rate for Detention Officers by averaging the firefighter and police officer rates, using the "slotting" methodology provided in 29 C.F.R. §4.51(c) (1999). This resulted in the wage rate for Detention Officer of $21.30 per hour. AR Tab A.

   After receiving the Labor Department's wage determination, the INS contracting officer wrote to the Administrator on July 19, 1999, requesting review of the wage rate for Detention Officer. AR Tab C; see 29 C.F.R. §4.56(a). INS asserted that the Detention Officer rate should not be slotted with other occupations because the position is specific to the INS. AR Tab C. Among the various materials submitted by INS was an extensive position description for a Detention Officer. AR Tab C, Attachment 2.

   In a final ruling letter issued September 2, 1999, by the Administrator's designee, Charles E. Pugh, Deputy National Office Program Administrator, the Administrator denied the INS's request for review and reconsideration, explaining that when

a wage survey for a particular locality . . . result[s] in insufficient data for one or more job classifications . . . [e]stablishment of a prevailing wage for certain such classifications may be accomplished through a 'slotting' procedure. . . . Under this procedure, wage rates are derived for a classification based on a comparison of equivalent or similar job duty and skill characteristics between the classifications studied and those for which no survey data is available.

AR Tab A. The Administrator noted that the Detention Officer, Firefighter and Police Officer classifications all have Federal grade equivalents of GS-6, that there was no independent wage data from the BLS survey to establish a wage rate for the Detention Officer classification, and that it therefore was appropriate to derive a rate for the Detention Officer by averaging the Firefighter and Police Officer rates. Id.

   The INS appealed the Administrator's Final Ruling letter to the ARB on September 21, 1999. Corrections Corporation of America (CCA), which operates the INS's Elizabeth, N.J., detention facility and was the only bidder on the contract, filed a Notice of Intervention on October 19, 1999, and later submitted a brief.

   We review the Administrator's final rulings under the Service Contract Act to determine whether they are consistent with the statute and regulations, and are a reasonable exercise of discretion. Dep't of the Army, ARB Case Nos. 98-120, 121, and 122 (Dec. 22, 1999), slip op. at 16.

   The Secretary has the responsibility under the SCA to determine "the minimum monetary wages to be paid the various classes of service employees in the performance of" Federal service contracts in excess of $2,500. 41 U.S.C. §351(a)(1). The usual method employed by the Secretary to determine wage rates for a service contract is to rely on information in area surveys conducted by the Bureau of Labor Statistics. 29 C.F.R. §4.51(a). When wage data on a specific job classification is not included in a BLS survey,

the Department of Labor's SCA regulations provide a method for dealing with this omission called "slotting":

(c) Slotting wage rates. In some instances, a wage survey for a particular locality may result in insufficient data for one or more job classifications that are required in the performance of a contract. Establishment of a prevailing wage rate for certain such classifications may be accomplished through a "slotting" procedure, such as that used under the Federal pay system. Under this procedure, wage rates are derived for a classification based on a comparison of equivalent or similar job duty and skill characteristics between the classifications studied [by BLS] and those for which no survey data is available.

29 C.F.R. §4.51(c). The Administrator's slotting methodology frequently has been reviewed by this Board and its predecessors, and has been found to be an appropriate tool for developing wage determination rates under the Act. See Court Security Officers [of Austin Texas], ARB Case No. 98-001 (Sept. 23, 1998), slip op. at 5; D.B. Clarke III, ARB Case No. 98-106 (Sept. 8, 1998), slip op. at 4-5; Kord's Metro Services, Inc., BSCA Case No. 94-06 (Aug. 24, 1994), slip op. at 5; Meldick Services, Inc., 87-CBV-07, Dep'y Sec'y (Mar. 23, 1990); Big Boy Facilities, Inc., 88-CBV-7, Dep'y Sec'y (Jan. 3, 1989), slip op. at 13-14. It has been held that "[s]lotting is a necessary tool used by the Wage and Hour Division in coping with the need to issue large numbers of wage determinations on a timely basis." Richard L. Roudebush VA Medical Center, Case No. 90-SCA-1, Dep'y Sec'y Dec. (Jan. 21, 1992), slip op. at 4. In addition, the Board has held more generally that when reviewing wage determinations, it will "ordinarily defer to the expertise and experience of the Administrator, and will upset a decision of the Administrator only when the Administrator fails to articulate a reasonable basis for the decision, taking into account the applicable law and the facts of the case." Court Security Officers [of Austin Texas], slip op. at 4.

   In its Request for Review and Reconsideration, the INS made two major arguments. First, the agency argued that it is inappropriate to slot the Detention Officer with the police office or firefighter classifications, because the duties of the Detention Officer are "specific" to the INS. AR Tab C at 1. Second, the INS questioned the appropriateness of the $21.30/hr. wage rate because it is substantially higher than the rates that allegedly would be paid to Federal employees performing this work. Id. Attached to the INS submission were a variety of SCA wage determinations for the New York and New Jersey areas, along with the INS's position description for Detention Officers and a brief tabulation compiled by the INS of the salary levels paid to Federal employees performing this work. Id., Attachments 1, 2, and 3.

   Before the ARB, the INS offers additional information and argument in support of its claim that the $21.30/hr. wage rate for Detention Officers is excessive. The agency

asserts that this work historically has been performed by Federal employees in GS-5 through GS- 7 grades, and that the Federal salaries for these grades in the New York New Jersey area range from $14.11/hr. to $16.06/hr. Petition for Review (PR) at 2. INS represents that unionized Detention Officers employed by INS contractors at a separate facility in the New York area are paid a rate of $13.50/hr., and that similarly unionized Detention Officers at a Miami, Florida, facility earn $12.97/hr. Id. In addition, the INS notes that the Wage and Hour Division's wage determination rates for Detention Officers in the Newark area have increased from $11.02/hr. in 1995 to $21.30/hr. in 1999; the agency states that "prior to the establishment of the Detention Officer classification, INS contracted for approximately one hundred fifty nine (159) full time equivalent employees for detention services within the Elizabeth, New Jersey area at a rate of $12.50/hr. vs. the current WD 94-2353 rate of $21.30/hr." Id.¹ In addition to this information concerning the rate of wages paid to Detention Officers in various locales, the agency reasserts that the Detention Officer classification is unique to the INS, and adds that the corps of Detention Officers employed at its facilities "comprises over 90 percent of the individuals employed within this specific occupation field in the New York/New Jersey area." Id. The INS summarizes its petition by stating that:

It is apparent that the wage contained in the Determination does not reflect a reasonable correlation to actual wages being paid with the Detention Officer occupation. I can only attribute such difference to the methodology utilized in determining these rates. I am requesting that the Department of Labor utilize actual survey data to arrive at the prevailing wage rate for Detention Officers. The Immigration and Naturalization [Service] is prepared to assist the Department of Labor in obtain[in]g any wage data your office feels is necessary to be included in an actual survey of the Detention Officer occupation.

   We have reviewed the additional extra-record information provided by the INS and CCA, and have not identified any materials that would lead us to remand the case to the Administrator for further consideration. The INS representations about collectively-bargained rates in other localities (New York, Miami) simply are not germane to the prevailing wage rate in the locality that the Administrator has found to be appropriate, i.e., the Newark, N.J., area. And although the raw pay scales compiled by CCA for corrections officers and detention officers in New Jersey are interesting, many of the pay rates for these officials appear to higher than the Detention Officer rate determined by the Administrator.² In sum, even if we were to accept CCA's data, which is submitted outside the formal Administrative Record of the case, we would see no compelling reason to require the Administrator to revisit the wage determination.³ Dep't of the Army, supra; COBRO Corp., supra.

   Under the slotting procedure, "wage rates are derived for a classification based on a comparison of equivalent or similar job duty and skill characteristics . . . ." 29 C.F.R. §4.51(c) (emphasis added). The Administrator acted within his discretion in comparing Detention Officers and Police Officers and Firefighters all Federal Grade 6 equivalents where the jobs have equivalent or similar duties and skill characteristics, even if they are not identical. Furthermore, the regulations provide that information to be considered in determining the prevailing rate in the locality "may . . . be obtained . . . from . . . other sources," 29 C.F.R. §4.51(a), or "establishment of a prevailing wage rate . . . may be accomplished through a 'slotting' procedure . . . ." 29 C.F.R. §4.51(c) (emphasis added). The Administrator therefore had discretion to utilize the slotting procedure rather than seek out other wage rate data for the locality, and we defer to this exercise of discretion where it was reasonable, consistent with the regulations, and not an unexplained departure from past determinations.

¹ Nowhere in its pleading does the INS declare specifically what job classification was assigned to these workers, who apparently provided "detention services" without being classified as Detention Officers.

² The CCA data does not include key information that normally would be needed to evaluate its relationship to a locally "prevailing rate," such as position descriptions and detailed information concerning the number of workers employed at the various pay levels. The "review and reconsideration" procedure contemplates that this kind of complete presentation would be submitted in the first instance to the Administrator, in which case it also would become part of the record considered by the Board on appeal. As noted, the Board is precluded from basing its decision on extra-record materials; however, when reliable data is presented calling into question the Administrator's decision, the Board has discretion to consider a remand. 29 C.F.R. §8.1(d); COBRO Corp., supra.

³ We note also that some of the assertions in CCA's brief concerning the work performed by its Detention Officers are flatly contradicted by the rigorous requirements found in the INS's position description.