With respect to review and
reconsideration of classification
conformance ruling under the Service
Contract Act as applied to Contract
No. DACA87-92-D-0126, Camp Elliott,
San Diego, California
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
FINAL DECISION AND ORDER
This matter is before the Board pursuant to the McNamara-O'Hara
Service Contract Act of 1965, as amended (SCA) 41 U.S.C. §§351-358 (1988),
and the regulations at 29 C.F.R. Parts 4 and 8 (1996). The case involves workers employed
on a project to remove unexploded ordinance under a federal service contract (No. DACA87-92-D-0126) issued on June 17, 1992 by the United States Army Corps of Engineers (Corps).
In accordance with 29 C.F.R. §8.7, Environmental Chemical
Corporation (ECC) filed a Petition for Review of the January 17, 1996 ruling of the Wage and
Hour Division's National Office Program Administrator (Administrator) issued on March 14,
[Page 2]
1996. See, Tab A of the Administrative Record (AR). The Administrator's final
ruling (AFR) denied review and reconsideration of Wage and Hour's June 7, 1993, approval
of ECC's request for the addition of various classifications and wage rates to the wage
determinations applicable to the aforementioned contract. In addition, the AFR rejected
ECC's contention that brush clearing work, for which the Swamper (Slash Piler), Sawyer
(Brush/Pre-Commercial Thinner) and Team Leader (Brush Crew) classifications were initially
requested, could be performed by the laborer classification already included in the existing
wage determinations.
Finally, the Administrator denied ECC's request for the modification of
rates for four of the recently conformed classifications. The Administrator found that one of
the four proposed rates did not show a "reasonable relationship" to others of a
similar grade, performing equivalent job duties. Regarding the remaining three the
Administrator found, that the information submitted by ECC was "insufficient since
input from the employees who signed the initial conformance request was not provided."
AFR at 4. For the reasons stated below, the Administrator's ruling is affirmed in part and
reversed in part.
The March 14, 1996 Petition for Review was answered by counsel for
the Administrator on May 3, 1996. In addition to the parties' other pleadings before this
Board, we have received a request from two International unions, the Laborers' International
Union of North America and the International Brotherhood of Teamsters, to intervene in the
case. The unions' intervention, opposed by the ECC in a motion dated May 3, 1996, was
approved by Order of the Board dated October 7, 1996, and the unions have submitted
statements which we have considered in our deliberations concerning this matter. 29 C.F.R.
§8.12.
1 Board of Service Contract
Appeals; see 29 C.F.R. Part 8 (1995). On May 3, 1996 the appellate responsibilities
previously performed by the BSCA were delegated to the Administrative Review Board pursuant to
Secretary's Order 2-96.
2 The wage
determinations applied to Imperial County, California where Camp Elliott is located. The applicable
wage determinations were: WD88-0209 (Rev. 6) that set the prevailing wage rates for administrative
support and clerical occupations; WD88-0213 (Rev. 5) that set forth the rates for "blue
collar" occupations, and WD88-0221 (Rev. 5) that listed rates for protective service occupations
such as security guards and firefighters.
3 At approximately
the same time, the Corps requested that ECC provide immediate restitution to those employees affected
by the classification modifications and warned that ". . . if ECC did not give adequate indications
of compliance, the Corps would withhold more contract funds in addition to the $50,000 already
withheld." By the time the work on this contract was completed in 1995, approximately 1 million
dollars in contract funds had been withheld from Petitioner. Statement of the Administrator at 4, fn.
4.
4See
e.g.Charles Randall, An Individual D/B/A Rut's Moving and Delivery Service, Case
No. 87-SCA-32, Dep. Sec. Dec., Dec. 9, 1991.
5 Wage Appeals
Board; see 29 C.F.R. Part 7 (1995). Prior to Secretary's Order 2-96, The Wage Appeals
Board issued final agency decisions concerning the Davis-Bacon (40 U.S.C. §276a et
seq.) and its related Acts (see 29 C.F.R. §5.1 (1995)), prevailing wage statutes
concerning federal and federally-assisted construction which are analogous to the SCA.
6 We note that the
Wage and Hour Division's current SCA Directory of Occupations lists four separate
categories of laborer. We conclude, however, that the laborer classification most closely related to the
duties in this matter is the same as that in issue in Rural Metro, that is Classification No.
23470, "LABORER:"
Performs tasks which require mainly physical abilities and effort involving little
or no specialized skill or prior work experience. The following tasks are typical
of this occupation: Loads and unloads trucks, and other conveyances; moves
supplies and materials to proper location by wheelbarrows or handtrucks; stacks
materials for storage or binning; collects refuse and salvageable materials.
Digs, fills, and tamps earth excavations; levels ground using pick, shovel,
tamper and rake; shovels concrete and snow; cleans culverts and ditches;
cuts tree and brush; operates power lawnmowers. Moves and
arranges heavy pieces of office and household furniture, equipment, and
appliances; moves heavy pieces of automotive, medical engineering, and other
types of machinery and equipment. Spreads sand and salt on icy roads and
walk-ways; picks up leaves and trash. [Emphases added.]
The applicable wage determinations listed only the classification "Laborer."
7See,
e.g. the ruling of the Deputy Secretary in the case of Systems Engineering Associates
Corporation, Case No. 86-SCA-OM-2, Jan. 12, 1988 ("[w]hen a wage determination does
not include a class of service employee which is to be employed under the contract i.e, the
work to be performed is not performed by any classification listed in the wage determination), the
contracting officer shall require that such an employee classified by the contractor so as to provide a
reasonable relationship (i.e. appropriate level of skill comparison) between such unlisted
classifications and the classifications listed in the wage determinations. 29 C.F.R. §4.6(b)(2)(i).
In addition, section 4.152(c) of 29 C.F.R. provides that conformance may not be used to artificially
split or subdivide classifications listed in the wage determination.'") Id. at slip op. 4-5.