BENDIX FIELD ENGINEERING CORP., 1990-SCA-WD-4 (Sec'y July 17, 1991)
CCASE:
BENDIX FIELD ENGINEERING CORPORATION
DDATE:
19910717
TTEXT:
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[1] U.S. DEPARTMENT OF LABOR
SECRETARY OF LABOR
WASHINGTON, D.C.
DATE: July 17, 1991
CASE NO. 90-SCA-WD-4
IN THE MATTER OF
BENDIX FIELD ENGINEERING CORPORATION,
and
ADMINISTRATOR, WAGE AND HOUR DIVISION,
EMPLOYMENT STANDARDS ADMINISTRATION,
UNITED STATES DEPARTMENT OF LABOR.
BEFORE: THE SECRETARY OF LABOR /FN1/
ORDER OF DISMISSAL
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 at 29 C.F.R. Parts 4,
6 and 8 (1990). Petitioner, Bendix Field Engineering Corporation,
filed a petition for review of the Acting Administrator's
determination denying its request to modify or change Wage
Determinations 86-1256 (Rev. 4) and 86-1260 (Rev. 5). Petition for
Review (Pet. Rev.) at 1-2. These wage determinations apply to
Petitioner's contract with the Naval Electronic Systems Engineering
Activity (NESEA) at St. Inigoes, Maryland, Administrative Record
(AR) Tab A, and they reflect $1.84/hour [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 (1990). As there presently is a vacancy in the
Office of the Deputy Secretary, I have reassumed the Board's
function pursuant to 29 C.F.R. [sec] 8.0. [1]
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[2] as the prevailing rate for health and welfare (H&W) benefits.
AR Tab B.
On July 6, 1990, Petitioner asked the Administrator to
review and reconsider the above wage determinations. Petitioner
argued that the H&W requirement of $1.84/hour, first established in
December 1986, no longer reflected the prevailing fringe benefit
level as required by Section 2(a)(2) of the MOSCA, 41 U.S.C. [sec]
351(a)(2). Instead, Petitioner maintained that the prevailing rate
should be $2.17/hour. Pet. Rev. at 6; AR Tab A.
In response, the Acting Administrator stated that a major
review of the H&W level was underway to determine if it should be
adjusted. Since the review would not be completed in time for the
commencement of work under the new contract, the Acting
Administrator concluded that the appropriateness of these wage
determinations "must be affirmed." AR Tab A.
The Acting Administrator has moved to dismiss the petition
contending that it is untimely and inappropriate under 29 C.F.R.
[sec] 8.6. Administrator's Motion to Dismiss (Motion) at 1. The
Acting Administrator acknowledges that regulatory Section 8.6(d)
allows review of a wage determination after exercise of an option
where the petition for review is filed prior to exercise of the
option, /FN2/ if the issue is a significant issue of general
applicability. He nevertheless argues that review should be [2]
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/FN2/ The petition for review was filed on August 20, 1990, and the
Acting Administrator states that NESEA exercised the option to
continue its contract with Petitioner on September 18, 1990.
Motion at 5. [2]
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[3] declined under authority of Section 8.6(a) as it would be
inappropriate because of the nature of the relief sought. /FN3/
Motion at 4-6.
Petitioner asks that I establish a prevailing H&W rate of
$2.17/hour based on the Employment Cost Index (ECI). /FN4/ Pet.
Rev. at 5. In responding to the request for review and
reconsideration, the Acting Administrator stated that Petitioner's
information "will be given careful consideration" but that the H&W
level would be established by "analyzing various data bases and
methodologies." AR Tab A. This is consistent with the regulatory
directive, see 29 C.F.R. [sec] 4.51(a), that fringe benefit level
determinations be based on "all available pertinent information as
to . . . fringe benefits being paid at the time the determination
is made."
The record indicates that the Acting Administrator is
currently reviewing all relevant data to determine if a [3]
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/FN3/ My disposition of this case does not imply that a failure to
act on a pending request constitutes a denial which, under 29
C.F.R. [sec] 8.2(a), confers the right to petition for review.
Here the Acting Administrator stated that the wage determinations
"must be affirmed." Also in view of my decision under 29 C.F.R.
[sec] 8.6(a), I need not decide if the petition raises "a
significant issue of general applicability." 29 C.F.R. [sec]
8.6(d).
/FN4/ Petitioner alleges that the Department of Labor has failed to
discharge its duty to update the H&W rates on an annual basis.
Pet. Rev. at 5; Opposition to Motion to Dismiss at 5. The duty
purportedly arises from a December 1, 1986, statement made by a
former Administrator in a memorandum to contracting agencies. AR
Tab B. This statement, however, is only a statement of intended
policy and it does not obligate the Department to annually update
fringe benefit levels. [3]
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[4] modification in the H&W rate is warranted. /FN5/ Other than
Petitioner's representation as to the ECI, none of that data is in
the record. Accordingly, I conclude that review of this case based
solely on the ECI is inappropriate. 29 C.F.R. [sec] 4.51(a),
8.6(a).
ORDER
For the foregoing reasons, the petition for review is
DISMISSED.
SO ORDERED.
[Lynn Martin]
Secretary of Labor
Washington, D.C. [4]
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/FN5/ The Acting Administrator's September 27, 1990, filing
represents that the Wage and Hour Division is likely to make a
determination concerning the proper amount of the H&W level before
the start of the next contract period in October 1991. Motion at
6. The Wage and Hour Division is directed to make every effort to
comply with that timetable if it has not already completed this
review. [4]
