UNITED STATES COLD STORAGE, 1985-CBV-1 (Dep. Sec'y Feb. 19, 1987)
CCASE:
UNITED STATES COLD STORAGE
DDATE:
19870219
TTEXT:
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[1] U.S. DEPARTMENT OF LABOR
DEPUTY SECRETARY OF LABOR
WASHINGTON, D.C.
20210
DATE: February 19, 1987
CASE NO.: 85-CBV-1
(formerly SCA-CBV-37)
IN THE MATTER OF
APPLICABILITY OF WAGE RATES COLLECTIVELY
BARGAINED BY UNITED STATES COLD
STORAGE AND LOCAL 107, HIGHWAY TRUCK
DRIVERS AND HELPERS, AFFILIATED WITH
INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN AND
HELPERS OF AMERICA, TO EMPLOYMENT OF
SERVICE EMPLOYEES UNDER A CONTRACT FOR
REFRIGERATED STORAGE WAREHOUSING AT
PHILADELPHIA, PENNSYLVANIA
BEFORE: THE DEPUTY SECRETARY OF LABOR
FINAL DECISION AND ORDER
This case is before the Deputy Secretary /FN1/ pursuant to a
Petition for Review filed by Teamster Local 107 (Local 107) under
the Service Contract Act of 1965, as amended (SCA), 41 U.S.C.
[secs] 351-358 (1982). The petition seeks review of the
Recommended Decision and Order on Remand /FN2/ (R. D. and O.)
issued by Administrative Law Judge David A. Clarke, Jr. (ALJ). [1]
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/FN1/ Pending establishment of a Board of Service Contract Appeals
as provided for by 29 C.F.R. Part 8 (1986), the Deputy Secretary of
Labor has been designated to perform the functions of said Board as
provided by 29 C.F.R. [sec] 8.0.
/FN2/ This case had been remanded to permit Local 107, which had
been excluded from participation in the initial hearing, to
participate in the proceeding. [1]
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[2] A hearing /FN3/ was held pursuant to an Order of Reference
issued by the Wage and Hour Administrator of this Department as
required by Section 4(c) /FN4/ of the SCA, 41 U.S.C. [sec] 353(c)
(1982), and the regulations promulgated thereunder, 29 C.F.R.
[secs] 6.50-6.57 (1986), to determine whether a substantial
variance exists between the wages and fringe benefits provided for
by the collective bargaining agreement to which Local 107 and
United States Cold Storage (Cold Storage) are parties, and the
wages and fringe benefits which prevail in the Philadelphia area.
The Order of Reference was issued at the request of
Independence Freezer Company (Independence) made pursuant to 29
C.F.R. [secs] 4.10, 4.11 (1985). Independence is an affiliate of
T Warehouse Corporation, the bidder on a contract to provide [2]
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/FN3/ The parties agreed that the hearing on remand would be a
continuation of the initial hearing. R. D. and O. at 2.
/FN4/ Section 4c provides:
No contractor or subcontractor under a contract, which
succeeds a contract subject to this Act and under which
substantially the same services are furnished, shall pay
any service employee under such contract less than the
wages and fringe benefits, including accrued wages and
fringe benefits provided for in a collective-bargaining
agreement as a result of arm's length negotiations, to
which such service employees would have been entitled if
they were employed under the predecessor contract:
Provided, That in any of the foregoing circumstances such
obligations shall not apply if the Secretary finds after
a hearing in accordance with regulations adopted by the
Secretary that such wages and fringe benefits are
substantially at variance with those which prevail for
services of a character similar in the locality. [2]
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[3] refrigerated warehouse services in the Philadelphia commercial
area for the Defense Personnel Support Center in Philadelphia,
Pennsylvania. Cold Storage had been providing those services as
the incumbent contractor.
The ALJ concluded that "Wage Determination No. 79-437, which
is based upon the collective bargaining agreement between U.S. Cold
Storage and Teamsters Local 107, is in substantial variance with
the wage rates and fringe benefits which prevail for public
warehousemen and related occupations in the Philadelphia area...."
R. D. and O. at 16. His recommendation was as follows:
Inasmuch as the record shows that there is a substantial
variance between Wage Determination No. 79-437 and the
wages and fringe benefits which prevail for services of
a character similar in the locality, a new wage
determination shall issue. 29 C.F.R. 4.1b[a].
Id. It is from this conclusion and recommendation that Local 107
seeks review.
Independence, however, has filed a motion in which it seeks
dismissal of Local 107's Petition for Review. Independence argues
that since Local 107's status as an "interested party" arises from
107's collective bargaining agreement with Cold Storage and its
status as bargaining representative of Cold Storage's warehouse
employees, and because Cold Storage has given written notice that
it intends to cease all warehouse operations in [3]
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[4] Philadelphia, and thus, to terminate all services being rendered to
the Department of Defense, "Local 107 will no longer represent
employees of a contractor rendering services under the contract nor
who may be expected to render such services." Verified Motion to
Dismiss Petition for Review at 2.
Local 107 has responded in opposition to the motion with
several arguments as to why it continues to be an interested party.
They are:
1. Independence Freezer's Motion To Dismiss The
Petition For Review Was Filed Prematurely
2. Even Assuming That Cold Storage Does Close
Down Warehousing Operations In Philadelphia,
Local 107 Would Still Remain An Interested
Party In The Proceeding
3. Inasmuch As Local 107 Was An Interested Party
At The Time The Petition Was Filed, The
Petition For Review Should Not Be Dismissed.
Since, after a thorough review of the record and exhibits, I
agree with the ALJ's findings and his conclusion that a substantial
variance exists, I am assuming, without deciding, that Local 107
continues to be an interested party within the meaning of 29 [sec]
6.57 (1986), with standing to pursue this appeal. Therefore, the
motion by Independence to dismiss Local 107's Petition for Review
is denied.
I adopt as my own the ALJ's Recommended Decision and Order on
Remand, a copy of which is appended to this Decision and made a
part hereof. I find that a substantial variance exists between
Wage Determination No. 79-437, which is based upon [4]
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[5] the collective bargaining agreement between Local 107 and Cold
Storage and the wage rates and fringe benefits which prevail for
public warehousemen and related occupations in the Philadelphia,
Pennsylvania, area. Accordingly, the Wage and Hour Administrator
is directed to issue a new wage determination.
SO ORDERED.
[Dennis E. Whitfield]
Deputy Secretary of Labor
Washington, D.C. [5]
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