CCASE:
DYNCORP
DDATE:
19910122
TTEXT:
~1
[1] U.S. DEPARTMENT OF LABOR
DEPUTY SECRETARY OF LABOR
WASHINGTON, D.C.
20210
DATE:
CASE NO. 87-SCA-OM-5
IN THE MATTER OF
DYNCORP (FORMERLY DYNALECTRON
CORPORATION),
and
ADMINISTRATOR, WAGE AND HOUR DIVISION,
EMPLOYMENT STANDARDS ADMINISTRATION,
UNITED STATES DEPARTMENT OF LABOR.
BEFORE: THE DEPUTY SECRETARY OF LABOR
ORDER OF REMAND
This case, which arises under the McNamara-O'Hara Service
Contract Act, as amended (MOSCA), 41 U.S.C. [secs] 351-358 (1988),
and 29 C.F.R. Parts 4 and 8 (1990), is before me for review. /FN1/
The merits issues are whether the Administrator properly rejected
the wage rates proposed by DynCorp in its conformance request as
not reasonably related to the rates set by the existing wage
determinations, and whether the Administrator's conformed rates are
reasonable and in accord with applicable law. The conformance
procedure is the method by which an unlisted classification can be
added to a wage determination if it is needed to perform a
contract. See 29 C.F.R. [secs] 4.6, 4.152. [1]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
/FN1/ Section 8.0 of 29 C.F.R., provides that the designee of the
Secretary of Labor shall perform the functions of the Board of
Service Contract Appeals during the interim period prior to the
appointment of a duly constituted Board. On May 30, 1989, the
Secretary assigned this responsibility to the Deputy Secretary. [1]
~2
[2] The Administrator now moves that the case be remanded so
that the April 3, 1987, conformance determination at issue may be
withdrawn and an amended determination may be issued. The
Administrator represents that DynCorp, the service contractor, the
Department of the Navy, the contracting agency, and the Department
of Labor have agreed upon revised classification and wage rate
structures, as incorporated in current wage determinations, for
retroactive application to the commencement of the contract period
for fiscal 1988. DynCorp and the Department of Labor reportedly
have agreed that these wage determinations may offer an appropriate
basis for back wage computations for the 1985 and 1986 contract
periods at issue here. Upon remand, the Administrator proposes "to
issue a new conformance determination applicable to the 1985 and
1986 contract years, which would reflect the same basic
classification and wage rate structure as that utilized for the
1988 wage determinations and those issued thereafter." Admin.
Motion at 3. DynCorp has joined in the Administrator's remand
request. However, based on admissions purportedly contained in the
Administrator's motion, DynCorp also urges that, as a matter of
law, the April, 1987, conformance determination was issued "in
error." DynCorp Motion at 1-2. /FN2/ Accordingly, DynCorp [2]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
/FN2/ The record and DynCorp's filings are extensive. The parties'
contentions are well presented, and upon consideration, I decline
to order oral proceedings as requested in DynCorp's Motion at 9.
29 C.F.R. [sec] 8.16. [2]
~3
[3] requests that I declare the conformance determination void and
without effect. /FN3/
I decline to do so. As discussed above, the issue in this
case is whether the Administrator's conformed classifications and
rates bear a reasonable relationship to those listed in the wage
determinations. The relationship maintained between job
classifications must be based on skills required and duties
performed. 29 C.F.R. [sec] 4.6(b)(2)(iv)(A). In order to have
issued the conformance determination erroneously in this context,
the Administrator must have failed in establishing a reasonable
relationship. While the current classifications and rates may be
more precisely drawn, it does not follow that the conformance
determination in issue necessarily is unreasonable. In other
words, a given determination may be less reasonable than another
without being altogether unreasonable. Such a finding as to
"reasonable" or "unreasonable" relationship would require that I
decide this case, /FN4/ a course which neither party now advocates.
Rather than remand the case to the Administrator as requested
by the parties, former employees of DynCorp request [3]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
/FN3/ The Administrator opposes this aspect of DynCorp's request.
/FN4/ Conformance determinations depend in large measure on a
factual record. Here, DynCorp argues that the determination is
erroneous as a matter of law based on a numerical comparison of
wage determination classifications for the years 1984 through 1989.
DynCorp Motion at 6. This consideration is not dispositive. This
case concerns fiscal 1985 and 1986 contract years, an April, 1987,
conformance determination, and record documentation as to rates and
job skills and duties involved in the pertinent conformance and
wage determination classifications. [3]
~4
[4] that the case be stayed. I have considered the employees'
views in this regard, 29 C.F.R. [sec] 8.11, and I do not find them
persuasive for the reasons discussed in the Order issued in this
case on February 15, 1990.
Accordingly, this case IS REMANDED to the Administrator.
SO ORDERED.
[Roderick DeArment]
Deputy Secretary of Labor
Washington, D.C. [4]
