UNITED STATES DEPT. OF ENERGY, 1988-SCA-WD-1 (Sec'y Oct. 30, 1991) (remand)
CCASE:
UNITED STATES DEPARTMENT OF ENERGY,
DDATE:
19911030
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[1] U.S. DEPARTMENT OF LABOR
SECRETARY OF LABOR
WASHINGTON, D C.
DATE: October 30, 1991
CASE NO. 88-SCA-WD-1
IN THE MATTER OF
UNITED STATES DEPARTMENT OF ENERGY,
AND
ADMINISTRATOR, WAGE AND HOUR DIVISION,
EMPLOYMENT STANDARDS ADMINISTRATION,
UNITED STATES DEPARTMENT OF LABOR.
BEFORE: THE SECRETARY OF LABOR /FN1/
ORDER OF REMAND
This matter is before me pursuant to the McNamara-O'Hara
Service Contract Act of 1965, as amended (MOSCA or the Act), 41
U.S.C. [secs] 351-358 (1988), and regulations promulgated
thereunder, 29 C.F.R. Parts 4 and 8 (1991). The Department of
Energy (DOE) filed a Petition for Review of the Wage and Hour
Administrator's July 25, 1988, final decision affirming the
appropriateness of Wage Determinations 87-1167 and 87-1167 (Rev. 1)
issued for application to a cementing service contract at the
Nevada Test Site (NTS) in Nye County, Nevada. The Administrator
submitted the record and a Statement of views, and DOE has filed a
Reply. [1]
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/FN1/ Previously the Deputy Secretary was 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 (1991). As there presently is a
vacancy in the Office of Deputy Secretary, I have reassumed the
Board's function pursuant to 29 C.F.R. [sec] 8.0. [1]
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[2] DOE's grounds for review are that Wage and Hour (WH) has
failed or refused to recognize that the drilling industry
is an industry unto itself and as a result of that
failure or refusal, used construction industry wage
survey data in making its WD 87-1167. Therefore, DOE
asks that this matter either be remanded to WH with
instructions to adopt the incumbent contractor's wage
rates as prevailing in the locality of the NTS or, in the
alternative, to collect and consider additional wage data
limited to the drilling industry and to include due
consideration of all pertinent data as provided for in 29
C.F.R. 4.15.
Petition for Review at 1. The Administrator acknowledges that
conformed wage rates and wage determination rates for two of the
three employee classifications at issue were based on the average
of rates listed in the Davis-Bacon Act (DBA) /FN2/ wage decisions
for five classes of power equipment operators. Administrator's
decision at 1.
The record reveals an ongoing controversy between DOE and
the Wage and Hour Division as to whether the cementing of drilled
oil wells constitutes construction activity covered under the
DBA, or service activity covered under the MOSCA. According to
the Administrator's Statement, "[t]he question of Davis-Bacon
coverage has never been resolved between DOE and the
Administrator. n Administrator's Statement at 4. In my view it [2]
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/FN2/ The Davis-Bacon Act, 40 U.S.C. [secs] 276a-276a-5, requires
that prevailing wages and fringe benefits be paid employees on
federal contacts for "construction, alteration and/or repair . . .
of public buildings or public works." The Secretary of Labor is
responsible for determining prevailing rates for both the DBA and
the MOSCA. [2]
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[3] is inappropriate for this case to proceed until this primary
issue is resolved. /FN3/
Accordingly, as authorized by 29 C.F.R. [secs] 8.1(b) and (d)
and 8.6(a), this matter is remanded to the Acting Administrator
who shall make a determination as to whether Petitioner's
contract is subject to the Davis-Bacon Act or the McNamara-O'Hara
Service Contract Act. The Administrator should make any further
determinations necessary or appropriate under the applicable
statute and regulations.
SO ORDERED.
[Lynn Martin]
Secretary of Labor
Washington, D.C. [3]
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/FN3/ By regulation, appeals of DBA wage determinations are
administratively determined by the Wage Appeals Board. 29 C.F.R.
Part 7.
/FN4/ There presently is a vacancy in the Office of the
Administrator, Wage and Hour Division. [3]
