NEW LTR CORP, 1986-CBV-1 (Dep. Sec'y Feb. 22, 1991)
CCASE:
NEW LTR CORPORATION
DDATE:
19910222
TTEXT:
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[1] U.S. DEPARTMENT OF LABOR
DEPUTY SECRETARY OF LABOR
WASHINGTON, D.C.
20210
DATE: February 22, 1991
CASE NO. 86-CBV-1
IN THE MATTER OF
APPLICABILITY OF WAGE RATES
COLLECTIVELY BARGAINED BY THE
NEW LTR CORPORATION AND THE
AMALGAMATED TRANSIT UNION
LOCAL 1225 TO EMPLOYMENT OF
SERVICE EMPLOYEES UNDER A CONTRACT
FOR BUS SERVICES IN LAS VEGAS, NEVADA.
BEFORE: THE DEPUTY SECRETARY OF LABOR /FN1/
FINAL ORDER OF DISMISSAL
This matter is before me in accordance with the McNamara-
O'Hara Service Contract Act of 1965, as amended (MOSCA), 41 U.S.C.
[secs] 351-358 (1988), and the implementing regulations thereunder
at 29 C.F.R. Parts 4, 6 and 8 (1990).
On February 29 and March 1, 1988, a hearing was held before
Administrative Law Judge (ALJ) Robert J. Brissenden pursuant to
requests by the United States Department of Energy and Reynolds
Electrical & Engineering Co., Inc., under Section 4(c) of MOSCA, 41
U.S.C. [sec] 353(c), to determine whether the wage rates for bus
drivers contained in Wage Determination No. 80-676 (Rev. 2), which
incorporated the rates contained in the collective bargaining
agreement between the Amalgamated Transit Union and [1]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
/FN1/ The Deputy Secretary has been designated by the Secretary to
perform the functions of the Board of Service Contract Appeals
pending the appointment of a duly constituted Board. 29 C.F.R.
[sec] 8.0 (1990). [1]
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[2] the New LTR Corporation were "substantially at variance with
those which prevail for services of a character similar in the
locality." 29 C.F.R. [sec] 4.10(c). See 29 C.F.R. [sec] 4.10(a).
On June 24, 1988, the ALJ issued a Decision and Order (D. and 0.),
holding that the $14.062 hourly rate for bus drivers was
substantially at variance with the prevailing hourly rate of $9.74.
D. and 0. at 6-7.
On July 1, 1988, the Amalgamated Transit Union filed a
Petition for Review (joined by the subcontractor, the New LTR
Corporation). On July 27, 1988, the Wage and Hour Administrator
filed a Petition for Review and Motion for Remand. /FN2/ On
August 3, 1988, the prime contractor, Reynolds Electrical &
Engineering Co., Inc., filed its Opposition to Petition for
Review filed by the Amalgamated Transit Union.
On February 21, 1989, the Wage and Hour Administrator filed
a Motion to Dismiss the petitions on the ground that this matter
is now moot. (Significantly, none of the other parties filed any
opposition to the Administrator's motion.) The Administrator's
request for a hearing was made in July 1985. The Administrator's
motion states that
[i]n the meantime, the collective bargaining agreement
which served as the basis for the challenged wage
determination expired on August 4, 1987, and was not [2]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
/FN2/ Remand was requested to correct the ALJ's alleged reliance on
outdated wage information. "In order to correct the judge's
erroneous reliance on 1985 wage rates, the case should be remanded
. . . to determine whether the current collectively bargained rate
of $14.062 is substantially at variance with the most current
prevailing wage rates." Administrator's Memorandum in Support of
Petition at 3. [2]
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[3] followed by a new collective bargaining agreement. In
addition, the subcontract for the bus driver services at
issue in this case expired January 1, 1989 and a new
contract went into effect on January 2, 1989.
Consequently, when the Department of Energy requested a
wage determination for this new subcontract, the
Administrator issued a prevailing wage determination (WD
No. 88-569).
The Petitions for Review are moot because the
collectively bargained rates, the wage determination and
the contract at issue are no longer in effect and could
no longer be altered by any further proceedings in this
matter. A wage determination issued as a result of a
final administrative determination of substantial
variance cannot be applied retroactively [quoting 29
C.F.R. [secs] 4.1(b)(a) and 4.163(c)].
Motion to Dismiss at 2-3. Upon consideration of the regulatory
provisions and the circumstances presented, I agree with the
Administrator that this proceeding is moot. See In the Matter of
Applicability of Wage Rates Collectively Bargained by Harry A.
Stroh Associates, Inc. and Local 495, Laborers' International Union
of North America, AFL-CIO, to Employment of Service Employees under
a Contract for Hospital Aseptic Management Services at Altus Air
Force Base, Oklahoma, Case No. 84-CBV-2, Deputy Secretary's Final
Order, April 8, 1988, slip op. at 2-4; Illinois Migrant Council,
Inc. v. United States Department of Labor, Case No. 84-JTP-10,
Secretary's Final Decision and Order, July 17, 1986, slip op. at
6-11.
Accordingly, this proceeding is dismissed as moot.
SO ORDERED.
[Roderick DeArment]
Deputy Secretary of Labor
Washington, D.C. [3]
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