DIRECTORATE OF CONTRACTING,
CONTRACT ADMINISTRATION DIVISION,
DEPT. OF THE ARMY, U.S. ARMY GARRISON, FORT HUACHUCA,
ARIZONA, 1990-SCA-OM-3 (Dep. Sec'y Apr. 6, 1992)
CCASE:
DIRECTORATE OF CONTRACTING.
DDATE:
19920406
TTEXT:
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[1] U.S. DEPARTMENT OF LABOR
SECRETARY OF LABOR
WASHINGTON. D.C.
DATE: April 6, 1992
CASE NO. 90-SCA-OM-3
IN THE MATTER OF
DIRECTORATE OF CONTRACTING,
CONTRACT ADMINISTRATION DIVISION,
DEPARTMENT OF THE ARMY, UNITED
STATES ARMY GARRISON, FORT HUACHUCA,
ARIZONA,
and
ADMINISTRATOR, WAGE AND HOUR DIVISION,
EMPLOYMENT STANDARDS ADMINISTRATION,
UNITED STATES DEPARTMENT OF LABOR.
BEFORE: THE SECRETARY OF LABOR
FINAL DECISION AND ORDER
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 implementing regulations set
forth at 29 C.F.R. Parts 4 and 8 (1991). Petitioner is the
Director of Contracting, Contract Administration Division,
Department of the Army, United States Army Garrison, Fort Huachuca,
Arizona. Petitioner seeks review, pursuant to 29 C.F.R. [sec]
8.7(b), of the Wage and Hour Administrator's /FN2/ final ruling
denying Petitioner's request for conformance /FN2/ of [1]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
/FN1/ Issued by the Deputy Assistant Administrator on behalf of the
Administrator.
/FN2/ The conformance procedure is the method by which a
classification of an employee not listed on the wage determination
can be added. The regulations specifying this procedure are found
at 29 C.F.R. [secs] 4.6 and 4.152 (1991). [1]
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[2] employee classifications of Mail Courier, POL Attendant,
Transportation Clerk and Senior Transportation Clerk.
Background
On October 12, 1989, Petitioner submitted a conformance
request for 12 employee classifications for Contract No.
DAEA18-89-C-0005. This contract, providing for base operations at
Fort Huachuca, Arizona, was awarded to Pan Am World-Services, Inc.,
and contained six Department of Labor Wage Determinations, (WD),
including Nos. 86-304 (Rev. 7) and 86-308 (Rev. 7). Administrative
Record (A.R.) at 14, 49, 54. Alan L. Moss, Director, Division of
Wage Determinations, denied eleven of the conformance requests and
approved one. A.R. at 10-12. Petitioner requested reconsideration
of seven of the denials. A.R. at 5-9. In a ruling dated June 28,
1990, the Deputy Assistant Administrator agreed to one of
Petitioner's conformance requests and referred two others to the
Compliance Officer then investigating Pan Am Service for
resolution. The Deputy Assistant Administrator affirmed the
rulings as to the four remaining disputed classifications. A.R. at
1-4. Petitioner has appealed the rulings on those classifications
and provided its rationale for each.
Discussion
Mail Courier
Petitioner's request to conform the classification of Mail
Courier at a wage rate of $6.00 per hour was denied by the Deputy
Assistant Administrator because the primary duties of the mail [2]
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[3] courier are very similar to those of the classification
"Truckdriver, Light Truck" contained in one of the wage
determinations applicable to this contract, WD No. 86-308 (Rev. 7).
The Administrator compared the duties contained in the job
description for mail courier submitted by Petitioner with the
duties performed by a driver of a light truck as defined in the
Service Contract Act (SCA) Directory of Occupations /FN3/ and found
them to be equivalent. A.R. at 25, 85-86.
Although Petitioner argues that the duties of Mail Courier for
Pan Am World Services are more closely related to the definition of
Driver Messenger in the SCA Directory of Occupations, Petition at
1, Driver Messenger is not one of the classifications listed in the
applicable WD and, thus, cannot be used in this conformance
process. The regulations provide that the requested
classifications must "be classified by the contractor so as to
provide a reasonable relationship (i.e. appropriate level of skill
comparison) between such unlisted classifications [*] and the
classifications listed in the wage determination [*]." 29 C.F.R.
[sec] 4.6(b)(2)(i) [*](emphasis added)[*]. I agree with the Deputy
Assistant Administrator that on the record here, the primary duties
of mail courier and light truck driver are equivalent and meet the
regulatory requirement that there be [3]
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/FN3/ The Service Contract Act Directory of Occupations "is a
legitimate attempt to standardize the myriad number and
descriptions of occupations and provides rational guidance in the
conformance process." In the Matter of Burnside-Ott, Case No.
87-SCA-OM-2, Dec. of the Dep. Secretary, Jan. 10, 1989, slip op. at
9. [3]
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[4] a reasonable relationship between the listed classification of
light truck driver and the unlisted classification of mail courier.
POL Attendant
The position description submitted by Petitioner for this
classification includes receiving, storing and issuing fuel at a
fuel distribution point. A.R. at 27. The Deputy Assistant
Administrator affirmed the Wage and Hour Division's decision on
this classification, stating that "[o]ur position to conform this
classification at an hourly rate of $8.25 per hour is based on a
comparison of duties performed by this classification to that of
the Fuel Distribution System Operator, rated as Wage-Grade 6 under
the Federal Wage System." A.R. at 2. Petitioner argues that the
position description it submitted earlier was incorrect and that
the position does not require the actual receiving, storing and
issuing fuel but merely record keeping duties. Petitioner's
unilateral attempt to change the position description originally
submitted and agreed to by the contractor and employees was
properly rejected by the Deputy Assistant Administrator. See 29
C.F.R. [sec] 4.6 (b)(ii).
Transportation Clerk/Senior Transportation Clerk
Petitioner's request to the Wage and Hour Division for a wage
determination (submitted on Standard Form 98, Notice of Intention
to Make a Service Contract and Response to Notice) requested a rate
for Travel Clerk, a classification which would be paid at a rate of
$9.24 per hour if employed directly by the [4]
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[5] federal government. Attachment to Statement of the Administrator.
The applicable WD, No. 86-304 (Rev. 7) contains the classification of
Travel Clerk at a rate of $9.29 per hour. The Director, Division of
Wage Determinations, denied Petitioner's request for conformance of
Transportation Clerk and Senior Transportation Clerk, stating that for
each of these classifications "[t]he conformance of this classification
is unnecessary as the duties specified are within the scope of the
Travel Clerk classification listed in WD 86-304 (Rev. 7) at $9.29 per
hour." A.R. at 11, 12. /FN4/ A review of the position descriptions
supports the determination that the transportation clerk and senior
transportation clerk duties are within the scope of the Travel Clerk
classification. Petitioner does not contest this; only that the [*]
level [*] of [*] skill [*] varies.
Petitioner's primary argument in advocating conformance of
these two classifications is that "the agency has attempted to
divide levels of responsibility similar to those methods used for
the Secretary I, II, or III or the Accounting Clerk I or II."
Petition for Review at 3. The regulations address the use of a
series of classes within a job classification as follows:
Some wage determinations will list a series of classes
within a job classification family, e.g., Computer
Operators, Class A, B, and C, or Electronic Technicians,
Class A, B, and C, or Clerk Typist, Class [5]
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/FN4/ The Contractor, Pan Am World Services, Inc., agrees with the
Deputy Assistant Administrator that the conformance of Senior
Transportation Clerk is unnecessary. Attachment to Petition for
Review, Letter to Commander, U.S. Army Garrison, from Richard W.
Klucsarits, Administrative Services Manager, Pan Am World Services,
Inc., dated April 30, 1990. [5]
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[6] A and B. Generally, the lowest level listed for a job
classification family is considered to be the entry level
and establishment of a lower level through conformance
([sec] 4.6(b)(2)) is not permissible. . . . Conformance
may not be used to artificially split or subdivide
classifications listed in the Wage determination.
However, conforming procedures may be used if the work
which an employee performs under the contract is not
within the scope of any classification listed on the wage
determination regardless of job title.
29 C.F.R. [sec] 4.152(c)(1). The Deputy Assistant Administrator's
response contends that Petitioner has failed to establish that such
a series of classes is traditionally recognized with regard to the
Travel Clerk classification. Statement of the Deputy Assistant
Administrator at 13. I agree with the Deputy Assistant
Administrator that Petitioner has not shown that the classification
of Travel Clerk is commonly subdivided into three skill level
categories. See In the Matter of CACI, Inc., Case No 86-SCA-OM-5,
Dec. of the Dep. Sec., Mar. 7, 1990, slip op. at 25; 29 C.F.R.
[sec] 8.9(b). Therefore, conformance of the positions requested is
not warranted.
Conclusion
In summary, there has been no showing, by a preponderance of
the evidence, that the Deputy Assistant Administrator's Decision
should be disturbed. 29 C.F.R. [sec] 8.9(b). Accordingly, the
decision is AFFIRMED and this case is DISMISSED.
SO ORDERED.
[Lynn Martin]
Secretary of Labor
Washington, D.C. [6]
