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CCASE:
TRI-STATES SERVICE
DDATE:
19900928
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[1] U.S. DEPARTMENT OF LABOR
DEPUTY SECRETARY OF LABOR
WASHINGTON, D.C.
20210
DATE: September 28, 1990
CASE NO. 85-SCA-WD-12
IN THE MATTER OF
TRI-STATES SERVICE COMPANY,
ADMINISTRATOR, WAGE AND HOUR DIVISION,
EMPLOYMENT STANDARDS ADMINISTRATION,
UNITED STATES DEPARTMENT OF LABOR.
BEFORE: THE DEPUTY SECRETARY OF LABOR /FN1/
FINAL DECISION AND ORDER
This matter is before me pursuant to the McNamara-O'Hara
Service Contract Act of 1965, as amended (MOSCA), 41 U.S.C. [secs]
351-358 (1982), and implementing regulations set forth at 29 C.F.R.
Parts 4 and 8 (1989). Petitioner, Tri-States Service Company,
seeks review of Wage Determination (WD) No. 81-1008 (Rev. 5), dated
December 17, 1984, issued by the Wage and Hour Administrator. This
WD was contained in Department of the Army Solicitation No.
DABT02-85-R-0007, for management and operation of the Directorate
of Industrial Operations at Fort McClellan, [1]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
/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. 8.0
(1989). [1]
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[2] (Calhoun County) Alabama. /FN2/ The WD contains 107 classes of
service employees.
Petitioner alleges that the rates contained in WD 81-1008
(Rev. 5) are excessive and higher than the federal government pays
its employees performing similar work. Petitioner argues that, to
the extent that the determination "is based on a rate just because
50 percent of the workers in a class of service employees engaged
in similar work in a particular locality have one single rate, your
regulations are unreasonable, arbitrary and discriminatory against
non-union workers . . . ." Petition for Review, Exh. A at 4-5.
In support of its contention that the WD contains rates
exceeding those actually prevailing, Petitioner proffers two wage
surveys, a December, 1984, Alabama State Employment Service survey
for Calhoun County and a 1983 Calhoun County Chamber of Commerce
Basic Wage Survey. Petitioners also provided signed form letters
from five individuals, three of whom were employed and two who
formerly were employed, stating that their wages or [2]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
/FN2/ The Petition for Review was filed with the Deputy Secretary
on June 26, 1985, prior to the final decision by the Administrator
in response to Petitioner's request for review and reconsideration
pursuant to 29 C.F.R. [sec] 4.55(a). The Deputy Administrator's
decision reaffirming the wage determination was issued on August 2,
1985. The Deputy Administrator's statement in response to the
petition points out that the practical effect of rejecting the
petition would be simply to require Petitioner to refile (Deputy
Administrator's Statement at 2). Rather than raise the issue of
timeliness, the Deputy Administrator submitted a statement in
response to the petition for review. I accept the petition and the
Deputy Administrator's statement as timely filed. [2]
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[3] former wages were less than the rates contained in the WD for
allegedly similar work. Petitioner also argues that the WD is
excessive because it sets rates which are "even in excess of those
paid government workers now performing such services." Id. at 2.
In response to Petitioner's request for review and
reconsideration, the Deputy Administrator specifically addressed
Petitioner's wage information as follows:
The wage rates contained in the Industrial Affairs Labor
Relations, Personnel Practices and Basic Wage Survey,
1983 compiled by Ayers Technical College for the Calhoun
County Chamber of Commerce which you provided was found
to be informative. While we do not question the validity
of the data, the survey is not clear as to the criteria
used for collection of the data. The BLS surveys on the
other hand are statistically designed to represent firms
in a metropolitan area, exclusive of the Government
sector and those firms engaged in the construction
industry. The Gadsden and Anniston, Alabama area wage
survey, July 1983, covered establishments employing 50
workers or more in manufacturing; transportation,
communication, and other public utilities; wholesale
trade; retail trade; finance, insurance, and real estate;
and selected services. A sample of 49 establishments
employing 17,332 workers was selected to represent 128
establishments employing 28,264 workers in the area.
Data collected in the sample establishments were
projected to represent all establishments within the
scope of the survey. Occupational classification
surveyed was based on a uniform set of job descriptions
designed to take account of variations in job duties
among establishments.
Administrative Record (AR), Deputy Administrator's final decision,
August 2, 1985.
Guidance for determining minimum monetary wages and fringe
benefits prevailing in the locality is found in 29 C.F.R. [3]
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[4] [sec] 4.51 (1989) as follows:
Information considered. The minimum monetary wages and
fringe benefits set forth in determinations of the
Secretary are based on all available pertinent
information as to wage rates and fringe benefits being
paid at the time the determination is made. Such
information is most frequently derived from area surveys
made by the Bureau of Labor Statistics, U.S. Department
of Labor, or other Labor Department personnel.
Information may also be obtained from Government
contracting officers and from other available sources,
including employees and their representatives and
employers and their associations . . . .
The Administrator states that in this case, WD No. 81-1008 (Rev. 5)
is the fifth revision of WD No. 81-1098, originally issued in
September, 1981. The source data for WD No. 81-1008 were primarily
the periodic surveys by the Bureau of Labor Statistics (BLS) of
Anniston-Gadsden, Alabama, covering Calhoun and Etowah Counties.
Fort McClellan is located in Calhoun County.
In September, 1982, WD No. 81-1008 (Rev. 1) was revised and
expanded to include additional job classifications. On May 10,
1984, WD No. 81-1008 (Rev. 2) was issued to reflect the wage rates
shown to be prevailing in the most recent BLS area wage survey for
the Gadsden and Anniston, Alabama, Standard Metropolitan
Statistical Area, dated July 1983. On May 25, 1984, WD No. 81-1008
(Rev. 3) was issued to include the job class of emergency medical
technician. On August 10, 1984, WD No. 81-1008 (Rev. 4) added a
tenth paid holiday.
When the Army requested a WD for the Fort McClellan
solicitation on October 17, 1984, the most recent data were in the
BLS July 1983 survey. A new survey would not be available [4]
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[5] until approximately October 1985. Deputy Administrator's Statement
(D.A.S.) at 5. Under these circumstances, the Administrator
adjusted the rates in WD No. 81-1008 (Rev. 4) upward by 4 percent.
According to the Administrator, this represented the percentage
increase of the average hourly earnings of production or
nonsupervisory workers on private nonagricultural payrolls between
July 1983 and July 1984, published in the BLS publication
Employment and Earnings. Id.
The basic issue to be decided is whether the wage information
supplied by Petitioner represents more accurate and probative
evidence of the prevailing wages in the locality than the data and
methods utilized by the Wage and Hour Division. In addition to the
validity and comprehensiveness of the BLS survey noted in the
Administrator's decision, the Deputy Administrator's statement
points out numerous deficiencies in the two surveys Petitioner
offers as a substitute. Among those deficiencies are the lack of
detailed methodology, inadequate criteria for the job
classifications listed, no description of how the firms surveyed
were selected and no information as to what percentage of the
universe they constitute. BLS survey data do not suffer from these
infirmities. See In the Matter of Applicability of Wage Rates
Collectively Bargained by Meldick Services, Inc., and the National
Maritime Union to Employment of Service Employees Under a Contract
for Mess Attendant Services at Bergstrom Air Force Base, Texas,
Decision of the Deputy Secretary, Case No. 87-CBV-7, March 23,
1990, slip op. at 14. I agree with the Deputy [5]
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[6] Administrator that the information used in determining the wage
rates for WD 81-1008 (Rev. 5), consisting of the BLS survey data and an
adjustment factor based on the BLS publication Employment and Earnings
constitute an appropriate basis for the wage determination at issue.
As for the statements provided by Petitioner alleging that
employees' wages were below those for similar classes contained in
the wage determination, such information is too sparse to be
significant and provides no meaningful basis for challenging the
Deputy Administrator's decision.
Petitioner's contention that a wage determination containing
rates which exceed the wages paid to federally employed workers in
similar jobs must be excessive is without merit. As noted to in
the Deputy Administrator's statement, "[n]othing in the statute nor
the regulations precludes such an outcome." D.A.S. at 6. Section
2(a)(5) of the Act and 29 C.F.R. [sec] 4.51(d) of the regulations
require that "due consideration" be given to the rates that would
be paid by the Federal Agency to the various classes of service
employees if hired directly. The fact that the Administrator did
not adopt the federal wages rates does not mean that "due
consideration" was not given. Where it is apparent that the
federal wage rate is only one of the elements of the local
prevailing wage, the Act gives the Administrator discretion to
determine the extent to which the disparity is justified. See AFGE
v. Donovan, 93 Lab. Cas. (CCH) [par] 34,177 (D.D.C. 1982). This
principle is valid whether the WD rates are [6]
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[7] higher or lower than the federal rates.
It was the Administrator's judgment that the BLS survey plus
the 4% adjustment factor was a more reliable indicator than the
federal wage rates. Id. at 7. Nothing in the record indicates
that this judgment was arbitrary or capricious or that there was an
abuse of discretion.
A ruling concerning Petitioner's argument that 29 C.F.R. [sec]
4.51(b) is "unreasonably arbitrary and discriminating against
non-union workers" is not within my jurisdiction. Section 4.51(b)
provides that [w]here a single rate is paid to a majority (50
percent or more) of the workers in a class of service employees
engaged in similar work in a particular locality, that rate is
determined to prevail." The regulations, at 29 C.F.R. [sec] 8.1(b)
state that the Deputy Secretary, see n.1 supra, "shall not have
jurisdiction to pass on the validity of any portion of the Code of
Federal Regulations which has been duly promulgated through notice
and comment by the Department of Labor and shall observe the
provisions thereof, where pertinent, in its decisions." In any
case, Petitioner has cited no specific instances where wage rates
in the WD allegedly were based on the 50 percent rule. The Deputy
Administrator denies Petitioner's contention that the 50 percent
rule was used, D.A.S. at 8, and a review of the record fails to
disclose that this option was used.
As noted above, Petitioner's information lacked detailed
methodology, adequate criteria for the job classifications listed,
a description of how the firms surveyed were selected and [7]
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[8] information specifying what percentage of the universe they
represented. The individual attestations Petitioner submitted were
meager and anecdotal and Petitioner failed to correlate them to any
particular job(s) in the 107 classes of service employees here.
Nor is there any corroboration in the record for Petitioner's
assertion that the 50 percent rule was issued. In contrast the
record in support of the wage determination demonstrates that the
underlying BLS survey encompassed a recognized Standard
Metropolitan Statistical Area; was comprehensive in the number of
employers and workers polled; and used a uniform set of job
descriptions. The Deputy Administrator considered the information
submitted by Petitioner and no error in the Administrator's
decision is cited, only a contention that other information should
have been used. In weighing the evidence in this record, I find
that Petitioner has failed to show by a preponderance of the
evidence, 29 C.F.R. [sec] 8.1(d), that the wage rates in WD 81-1008
(Rev. 5) were erroneous or discriminatory. I find by a
preponderance - indeed a substantial preponderance - of the
evidence that the Administrator properly determined the applicable
wage rates, that the methodology used was in accord with applicable
law, and that it did not violate or misapply the procedures as
contained in the regulations. [8]
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[9] Accordingly, WD No. 81-1008 (Rev. 5) is AFFIRMED and the
Petition for Review is DISMISSED.
SO ORDERED.
[Roderick DeArment]
Deputy Secretary of Labor
Washington, D. C. [9]
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