Thus, the wage determination the Administrator issued as a result of the ALJ's finding of a substantial variance in this case is effective as of the date the ALJ issued the D. & O., July 18, 2005, until the end of the CBA between Startech and UGSOA.
Conclusion
Since the USDA did not participate in the substantial variance proceedings before the ALJ, the USDA does not have standing to file a petition for review to the Board pursuant to 29 C.F.R. § 6.57. Accordingly, the USDA's Petition for Review is DISMISSED.
SO ORDERED.
WAYNE C. BEYER
Administrative Appeals Judge
M. CYNTHIA DOUGLASS
Chief Administrative Appeals Judge
[ENDNOTES]
1 41 U.S.C.A. § 351 et seq. (West 1987); see 41 U.S.C.A. § 353(c), as implemented by 29 C.F.R. Parts 6 and 8 (2008).
2 Contract No. N-00-600-01-D-0592, USDA Ref. No. 53-3142-1-6042.
3 41 U.S.C.A. § 353(c).
4 41 U.S.C.A. § 351(a)(1), (2); 29 C.F.R. § 4.53.
5 41 U.S.C.A. § 351(a)(1)(2); 29 C.F.R. § 4.52.
6 29 C.F.R. § 4.52(a).
7 The Order of Reference was served on the Secretary of Agriculture. The Order's certificate of service was addressed to "Ann M. Veneman, Secretary, U.S. Department of Agriculture," apparently because she had been listed as an interested party on UGSOA's September 30, 2004 request for a substantial variance hearing. But Michael Johanns had succeeded Ann M. Veneman as the Secretary of USDA at the time that the Order of Reference was issued.
8 See Administrative Law Judge's Exhibit (ALJX) 1. The Notice was served on "Ann M. Veneman, U.S. Department of Agriculture."
9 See UGSOA's June 14, 2005 Response to Order of Reference at 1.
10 D. & O. at 1.
11 Id.
12 See ALJX 2.
13 See 29 C.F.R. § 6.53(c).
14 D. & O. at 1-2.
15 July 27, 2005 Order at 1-2; see also 29 C.F.R. §§ 6.56, 6.57.
16 29 C.F.R. § 8.1(b); see also Secretary's Order 1-2002, 67 Fed. Reg. 64,272 (Oct. 17, 2002).
17 29 C.F.R. § 8.1(d).
18 29 C.F.R. § 8.9(b).
19 United Gov't Sec. Officers of America, Loc. 114, ARB Nos. 02-012 to 02-020, slip op. at 4-5 (ARB Sept. 29, 2003); United Kleenist Org. Corp. & Young Park, ARB No. 00-042, ALJ No. 1999-SCA-018, slip op. at 5 (ARB Jan. 25, 2002).
20 See Dep't of the Army, ARB Nos. 98-120/-121/-122, slip op. at 15-16 (ARB Dec. 22, 1999).
21 See Sundex, Inc., ARB No. 98-130, ALJ No. 1994-DBA-058, slip op. at 2 (ARB Dec. 30, 1999).
22 We note that the ALJ also ordered that "the transcript of the pre-hearing conference would constitute my final decision and order." D. & O. at 1-2. The record before the Board, however, does not contain any transcript of the pre-hearing conference. The Board delayed issuing its decision in this case in an attempt to obtain a copy of the "transcript" from the Administrator, UGSOA, the USDA or the ALJ. But after the Board's request, neither the ALJ, the Administrator, UGSOA, nor the USDA could provide a copy of any such "transcript" or indicate that one ever existed. Thus, the Board has proceeded to review this case as if no transcript of the pre-hearing conference exists or is part of the record. Again, a review of the ALJ's D. & O. indicates that the ALJ did not address or base his decision on the USDA's failure to appear or enter a "default judgment" against the USDA. As the ALJ's D. & O. indicates that he found that a substantial variance existed based only on his own findings of fact and conclusions of law, we assume, without any other indication in the record, that the ALJ only addressed the merits of the case.
23 The USDA relies on the holdings in Institutional & Envtl. Mgmt., Inc., 1988-CBV-004, slip op. at 2 n.6, and at 5 (Sec'y Jan. 11, 1989) and United States Cold Storage, SCA-CBV-037, slip op. at 4 (Sec'y Oct. 25, 1985) to argue that its being denied an opportunity to participate in this case because of the alleged "defective notice" that it received is akin to granting a default judgment against it. Thus, the USDA argues that the alleged "defective notice" constitutes "alleged procedural irregularities in the proceeding below" permitting the USDA, as a non-appearing party, to file a petition for review pursuant to 29 C.F.R. § 6.7(b).
But the USDA's argument is misplaced, as the instant case is distinguishable from the facts in both Institutional & Envtl. Mgmt and Cold Storage. In Institutional & Envtl. Mgmt., while an interested party had been present for purposes of participating in the pre-hearing conference and hearing at its originally scheduled time and place, it did not attend the pre-hearing conference and hearing when it was actually held because it had not been served with a notice of the rescheduled hearing for which it bore no responsibility. Institutional & Envtl. Mgmt., slip op. at 2-5. In this case, we note that both the Order of Reference and the Notice of Pre-Hearing Conference and Hearing and Pre-Hearing Order were served on the Secretary of Agriculture. See ALJX 1. In addition, UGSOA's Response to the Order of Reference, specifically noting that UGSOA is a party to a CBA with Startech covering employees who work as "security officers" at the "USDA" headquarters in Washington D.C. pursuant to "government contract no. N-00-600-01-D-0592, USDA Ref. No. 53-3142-1-6042," was served on "Mike Johanns, Secretary, U.S. Department of Agriculture."
In Cold Storage, a party that had received notice of a substantial variance hearing and appeared at the hearing was nevertheless excluded by the ALJ from participating in the proceedings before the ALJ. Cold Storage, slip op. at 3. In this case, the ALJ did not exclude the USDA from participating in the proceedings before him, but served the Notice of Pre-Hearing Conference and Hearing and Pre-Hearing Order on the Secretary of Agriculture. Moreover, the USDA did not appear at the pre-hearing conference or exhibit any other indication of its intent to participate in the proceedings.
Thus, not only did the ALJ not base his decision on the USDA's failure to appear or enter a "default judgment" against the USDA, but the ALJ's decision cannot be considered akin to granting a default judgment. Unlike Institutional & Envtl. Mgmt. and Cold Storage, the USDA was not denied an opportunity to participate in this case either by the ALJ or because it had never been served with any notice of the pre-hearing conference.
24 See 29 C.F.R. § 4.6(d)(2).