DATE: May 5, 1992
CASE NO. 91-SCA-OM-5
IN THE MATTER OF
HARBERT INTERNATIONAL, INC.,
CONTRACT AT FORT LEONARD WOOD,
MISSOURI,
AND
ADMINISTRATOR, WAGE AND HOUR DIVISION,
EMPLOYMENT STANDARDS ADMINISTRATION,
UNITED STATES DEPARTMENT OF LABOR.
BEFORE: THE SECRETARY OF LABOR [1]
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.
§§ 351-358 (1988), and regulations at 29 C.F.R. Parts
4, 6, and 8 (1991). Petitioner, Harbert International, Inc.,
seeks review of the Deputy Assistant Administrator's (DAA) April
19, 1991, final ruling in response to Petitioner's conformance
request concerning a service contract with the Department of the
Army (Army). [2]
BACKGROUND
On March 17, 1988, the Army awarded Harbert Contract No.
DABT31-88-C-0006 for base maintenance support services for the
Directorate of Engineering and Housing at Fort Leonard Wood,
Missouri. [3] See Administrative Record (AR), Tab G.
Harbert filed three conformance requests for the proposed
addition of thirty-six job classifications and wage rates to the
wage determinations issued for the contract. [4] AR, Tab F.
In a ruling dated April 6, 1990, the Wage and Hour Division
approved twenty-nine and denied seven of the proposed
classifications and wage rates. Id. On February 20,
1991, Harbert requested review and reconsideration of the denied
classifications and wage rates. [5] AR, Tab E. In a final
ruling, dated April 19, 1991, the DAA concurred with Harbert as
to two of
[PAGE 2]
the conformances and did not address a third conformance which
Harbert considered moot. AR, Tab C at 10; Tab E at 35. As to
the remaining four conformances (Self-Help Coordinator;
Electrician, Low-Voltage; General Maintenance Worker and Mason,
Maintenance), the DAA affirmed Wage and Hour's ruling. [6]
DISCUSSION
I. Procedural Matters
Harbert asks that the final ruling not apply to option years
one and two, see note 3 supra, because of the delay
in issuing the initial conformance ruling and in transmitting it
to Harbert. Req. Rev. at 3; Petitioner's Response (Pet. Resp.)
at 5-7. Harbert notes that 29 C.F.R. § 4.6(b)(2)(ii) states
that Wage and Hour will take action on a conformance request
within 30 days of receipt and that the initial ruling in this
case was not issued until almost two years after the conformance
request was forwarded to Wage and Hour. AR, Tabs F and G.
Harbert also claims that it only learned of the ruling several
months later. See note 5 supra.
The delay was prejudicial, according to Harbert, because
Harbert executed a contract modification to adjust the contract
price for cost increases attributable to changes in the
prevailing wage determination, apparently relying on the
conformance determinations it had proposed. Req. Rev. at 2, 3.
One aspect of this contention is the allegation that the
Contracting Officer did not release the initial conformance
ruling until after the modification was signed and, had the
ruling been released, Harbert might have been able to avert the
prejudice. Pet. Resp. at 6. Insofar as this allegation
concerning the Contracting Officer may be true, see note 5
supra, it is a matter between the contracting agency and
Harbert [7] and is not before me for resolution.
To the extent that Harbert is contending that the delay
in issuing the conformance ruling justifies Harbert's relying on
its proposed conformance determinations, it is clear that such
reliance is not proper. Unless a conformance request is granted,
the contractor is obligated to pay the rates established in the
conformance ruling retroactive to the first day on which contract
work is performed. [8] 29 C.F.R. § 4.6(b)(2)(v), (vi).
SeeIn the Matter of Burnside-Ott and
Administrator, Case No. 87-SCA-OM-2, Dep. Sec. Dec., Jan. 10,
1989, slip op. at 11.
Harbert's argument that Wage and Hour may be estopped from
rejecting its proposed classifications and wage rates, Pet. Resp.
at 5-6, is without merit. Insofar as Wage and Hour could be
subject to estoppel, Harbert would have to demonstrate that Wage
and Hour made false representations with the intent that Harbert
should rely on them, coupled with affirmative misconduct.
Mukherjee v. Immigration and Naturalization Service, 793
F.2d
[PAGE 3]
1006, 1008-09 (9th Cir. 1986); Jaa v. Immigration and
Naturalization Service, 779 F.2d 569, 572 (9th Cir. 1986).
The record does not reflect any false representations by Wage and
Hour and furthermore, as Harbert concedes, Pet. Resp. at 6,
unexplained delay does not show affirmative misconduct. 779 F.2d
at 572. The thirty day period in Section 4.6(b)(2)(ii) is not
jurisdictional and Wage and Hour is, therefore, authorized to
engage in conformance procedures beyond the thirty day
period. [9] In the Matter of CACI, Inc., Case No. 86-
SCA-OM-5, Dep. Sec. Dec., Mar. 27, 1990, slip op. at 29.
Harbert also contends that the Administrative Record is
incomplete and argues that it should be permitted to supplement
the Administrative Record or, in the alternative, be granted a
remand. Petitioner's Rebuttal (Pet. Reb.) at 5-7. Harbert
initially alleges that it was hindered in supporting its
conformance action because Wage and Hour neglected to provide
the basis for its initial ruling. Pet. Reb. at 4-5. I disagree.
Although its rulings were not detailed, with the possible
exception of General Maintenance Worker, each gave guidance
as to positions in the wage determination which Wage and Hour
considered comparable to the classifications for which Harbert
sought conformance. Additionally, the applicable regulation
describes at length the process by which conformed rates are
to be established and lists several factors which may be
relied on in determining an appropriate rate. See 29
C.F.R.
§ 4.6(b)(2)(iv)(A).
Harbert next maintains that under 29 C.F.R. § 8.9(b),
the record to be considered in this appeal is the record as
developed in proceedings before me. Pet. Reb. at 7. Harbert's
contention overlooks the fact that this is an appellate process
in which cases are reviewed from a record upon which the decision
appealed from was based, that is the Administrative Record.
See 29 C.F.R. §§ 8.1(d), 8.8(b). Where, as
here, [10] a submission goes beyond the record before the
Administrator, I may not rely upon it on review. [11] In the
Matter of BDM Management Services Company and Administrator,
Case No. 88-SCA-OM-1, Dep. Sec. Dec., Aug. 1, 1988, slip op. at 2
n.2.
With respect to the request for a remand, the regulations
provide that it is discretionary. 29 C.F.R. § 8.1(d). In
instances where the Wage and Hour Division excludes relevant
evidence, fails to make a necessary finding, or where the
contractor for some reason was unable to present evidence or
raise a necessary issue, remand may be appropriate. Inasmuch as
none of these situations applies in this case, I decline to order
a remand.
II. Conformance Rulings
Where a wage determination under a contract does not list
[PAGE 4]
a class of service employee to be employed under the contract,
the Contracting Officer shall require that the unlisted class
be classified by the contractor so as to provide a reasonable
relationship [12] between the unlisted classification and the
classifications listed in the wage determination. 29 C.F.R.
§ 4.6(b)(2)(i). Although the process of establishing rates
that bear a reasonable relationship to those listed in a wage
determination cannot be reduced to any single formula, the
regulations provide considerable guidance as to how the process
operates. 29 C.F.R. § 4.6(b)(2)(iv).
A. Self-Help Coordinator
In its conformance application, Harbert described this
position as a working leader with a basic working knowledge of
various maintenance trades. Harbert established the proposed
hourly rate of $8.50 at approximately six percent above the next
lower craftsman position supervised. AR, Tab G at 52. The
position description states that the Self-Help Coordinator will
provide classroom instruction to military personnel on various
home repairs. Id. at 62-63.
In the initial ruling, Wage and Hour concluded that, based
on the description of work submitted, the proposed rate is not
conformable to the other rates in the wage determination. Wage
and Hour stated that skills for this position are comparable to
Plumber, Carpenter and Painter, plus the ability to teach and,
therefore, an hourly rate of $9.81 was appropriate. AR, Tab F
at 37, 43.
Harbert requested reconsideration, arguing that conformance
was premised on a basic working knowledge of maintenance
trades. It alleged that conformance was at six percent above
Maintenance Trades Helper because the knowledge, skills and
abilities were less than required for Plumber, Carpenter and
Painter and the ability to teach was limited in nature. AR, Tab
E at 33 (emphasis in original).
In the final ruling, the DAA found that the knowledge for
this position was comparable to General Maintenance Worker,
listed in the Service Contract Act Directory (Directory) as
requiring a basic practical knowledge of several maintenance
trades. AR, Tab C at 8; Tab H at 113-14. The DAA stated that,
if listed, General Maintenance Worker would be $9.35/hr which is
one step below the basic maintenance trades of Carpenter, Plumber
and Painter, but several steps above Maintenance Trades Helper.
Based on the additional requirements for this position, the DAA
concluded that an hourly rate of $9.81, the same as the next
higher skilled maintenance trade category in the wage
determination, was appropriate and affirmed Wage and Hour's
ruling.
In challenging the final ruling on this classification,
[PAGE 5]
Harbert states that the Self-Help Coordinator is not a supervisor
or working leader. Petitioner's Supplemental Response (Pet.
Supp. Resp.) at 16. Support for this allegation, which flatly
contradicts Harbert's conformance application, is found in an
affidavit which is not part of the record, see
Supplemental Administrative Record (SAR), Tab O, and therefore
not appropriate for consideration. Even if the allegation were
true, however, the position requires providing instruction and is
therefore entitled to a higher rate than comparable positions
which do
not. [13]
Harbert next makes several general statements as to why its
conformance action was proper and alleges that the Self-Help
Coordinator position is not equivalent in skill to the journeyman
positions. Pet. Supp. Resp. at 16-18. There is no support in
the record for these views and Harbert has supplied no other
meaningful data to either support its position or to refute
Wage and Hour's determination. 29 C.F.R. § 4.6(b)(2)(iv);
In the Matter of Richard M. McGlumphy and Administrator,
Case
No. 86-SCA-OM-4, Dep. Sec. Dec., Dec. 1, 1987, slip op. at 5.
Harbert's conclusion that a position which requires knowledge
of maintenance trades and instructional abilities is conformable
at a rate just above that payable to unskilled workers,
see AR, Tab F at 44, is plainly unreasonable.
In contrast, the final ruling, which places the position one
step below the journeyman level, is supported by the record and
reasonable. I therefore affirm the rate of $9.81/hr for the
Self-Help Coordinator position.
B. Electrician, Low Voltage
In the conformance application, Harbert described this
position as conforming to Electrician, Maintenance in the
Directory and comparable to Carpenter, Locksmith and Plumber,
AR, Tab G at 52, Tab H at 112, and it established the proposed
hourly rate at $9.81. Wage and Hour's initial ruling concluded
that the duties were comparable to High Voltage Electrician
which it approved at $10.25.
Harbert, in requesting reconsideration, argued that the
differences between Electrician, High-Voltage and Electrician,
Low-Voltage were very substantial in terms of both skill and
personal risk and alleged that the difference is widely
recognized in industry. AR, Tab E at 33-34. In the final
ruling, the DAA stated that if Electrician, Maintenance were
listed, it would have been $10.25/hr as this class is considered
to be among the highest skilled trades. The DAA concluded that
the safety requirements for the two conformed positions are no
different and stated that industry as a whole pays equivalent
rates. AR, Tab C at 9.
In contesting the final ruling, Harbert states that it rated
[PAGE 6]
Low-Voltage Electrician lower than High-Voltage because of the
difference in skill levels. Harbert alleges that the primary
difference under the federal pay system between a WG-8
Electrician, which is similar to Electrician, Low-Voltage, and a
WG-10 Electrician, comparable to Electrician, High-Voltage, is
that the former works on primarily residential, rather than
complex industrial projects. Pet. Supp. Resp. at 21-23.
See AR, Tab I at 124. The evidence which tends to
establish the work of this position as primarily residential is
not in the record and may not be considered. Even if considered,
however, there are other indicia supporting the higher
classification. Harbert's position description states that the
Low-Voltage Electrician must be able to read and follow
blueprints, specifications, and work orders. AR, Tab G at 66.
This characteristic is typical of the WG-10 Electrician, AR Tab I
at 124, which earns the same rate of pay as the Electrician (High
Voltage). Id. at 126. I conclude, therefore, that
Harbert's conformance for Electrician, Low-Voltage is not
reasonable, and I affirm the rate of $10.25 for that position as
the evidence in the record establishes that the federal
government pays equivalent rates for it and Electrician, High
Voltage. SeeCACI, Inc., slip op. at 11 (use of
federal pay systems authorized by 29 C.F.R. §
4.6(b)(2)(iv)(A)).
C. General Maintenance Worker
Harbert conformed this classification to General Maintenance
Worker in the Directory and concluded it was comparable to
Material Sorter/Classifier, Store Worker, Mobile Equipment
Servicer, Warehouse Worker, and Maintenance Trades Helper. AR,
Tab G at 53. The position description states that the work
requires a basic practical knowledge of several maintenance
trades. Id. at 71. See AR, Tab H at 113-14. Wage
and Hour ruled that, based on the job description, the proposed
hourly rate of $8.01 was not conformable to the other rates in
the wage determination.
In urging reconsideration, Harbert stated that the
conformance action followed WD 81-1240 (Rev. 4) which provided
in part that "[w]orkers who may be part of a planned program of
training and development for advancement to journeyman level
. . . may be classified as a 'maintenance trades helper.'" [14]
AR, Tab E at 34. Harbert therefore used the rate for Maintenance
Trades Helper. In the final ruling, the DAA found the proposed
rate unacceptable because it was identical to a classification of
workers who performed unskilled tasks. As explained previously,
see discussion at page 9 supra, the DAA concluded
that the rate of $9.35, was appropriate for this classification.
On appeal, Harbert contends that the final ruling conformed
General Maintenance Worker to "a generalized impression of what
a classification title should be paid, as opposed to the stated
[PAGE 7]
specific duties of the classification as submitted." Pet. Supp.
Resp. at 14. On the contrary, the DAA noted that Harbert's job
description reflected the same skills as the same classification
in the Directory, i.e., a basic practical knowledge of
several maintenance trades. See AR, Tab G at 71, Tab H at
113-14.
Harbert also alleges that Wage and Hour ignored WD 81-1240
Revs. 5 and 6 which listed duties and responsibilities of a
Maintenance Trades Helper identical to those stated by Harbert
in its conformance action. Pet. Supp. Resp. at 14. A review of
these documents demonstrates that there is an obvious error. In
each case there is an initial description of a worker who assists
others, described as a Maintenance Trades Helper. AR, Tab D at
16-17, 26-27. Immediately following is a description of a worker
with greater responsibilities, but with the same title.
Id. at 17, 27. In WD 81-1240 (Rev. 4), a description
identical to the latter description is entitled Maintenance
Trades Worker, a classification for which there is no rate. AR,
Tab F at 42. Because it would make no sense to have successive
classifications with different duties referred to by the same
title, I conclude that the position described by Harbert in Revs.
5 and 6 was intended to be Maintenance Trades Worker.
The description for Maintenance Trades Worker was not
adopted by Harbert until the conformance action was on
reconsideration and it differs significantly from the position
description prepared by Harbert. But even if the Maintenance
Trades Worker description applied to this classification, it
would not support the proposed rate of $8.01 which is payable
to Maintenance Trades Helper, an unskilled classification. I,
therefore, affirm the rate of $9.35 which reflects a rate below
the maintenance trades positions but above the helpers.
See AR, Tab C at 9.
D. Mason, Maintenance
In conforming this classification, Harbert represented that
the job had the skill levels and knowledge as described in the
Directory and was comparable to Carpenter, Painter, Plumber and
Locksmith. AR, Tab G at 58. The position description stated
that the worker would perform complete brickwork and may do some
welding. Id. at 87. See AR, Tab H at 115-16. Wage and
Hour concluded that the proposed hourly rate of $9.81 was not
conformable to other rates and that classifications with
comparable skills were listed at $10.25. AR, Tab F at 38.
In seeking reconsideration, Harbert argued that there was
no evidence that the skills or experience required exceeded that
for other journeyman craft positions paid at the proposed rate.
AR, Tab E at 34. The DAA final ruling stated that the job
description was identical to that contained in the Directory, a
classification that is one of the highest skilled maintenance
[PAGE 8]
trade occupations, such as Welder. Since Welder was listed at an
hourly rate of $10.25, it was appropriate to conform the same
rate for this classification, which is also required to do
welding. AR, Tab C at 9-10.
In appealing this ruling, Harbert argues that a requirement
for occasional welding does not require welder skills and further
represents that its Mason workers do no welding. Pet. Supp.
Resp. at 19. A review of the final ruling, however, reveals that
the welding requirement did not play a major role in Wage and
Hour's selection of $10.25 as the appropriate rate. The essence
of the ruling was that the Mason classification was comparable
in skill to the occupation of Welder. AR, Tab C at 10.
Harbert also contends that the duties and responsibilities
for Mason, Maintenance are substantially similar to that of
Masonry Worker. Pet. Supp. Resp. at 18. The job description for
Masonry Worker, SAR, Tab I, however, is not part of the record,
and may not be considered. Even if it were considered it would
not support the proposed rate since the Mason, Maintenance job
description seems to contain more difficult tasks than the
Masonry Worker description. Inasmuch as Harbert submitted no
meaningful data which I can consider to support its proposed rate
or refute Wage and Hour's determination, I affirm the rate of
$10.25 for the Mason, Maintenance classification.
McGlumphy, slip op. at 5.
CONCLUSION AND ORDER
For the foregoing reasons, I conclude that the delay in
responding to the conformance application, some of which is
attributable to Harbert, did not estop Wage and Hour from issuing
a binding conformance ruling and does not require that the ruling
be applied other than retroactively. I also find that Harbert
has failed to establish that it is entitled to supplement the
record before me or have the case remanded for that purpose.
Finally, based on the evidence of record, the final ruling as to
conformance of the classifications of Self-Help Coordinator;
Electrician, Low-Voltage; General Maintenance Worker and Mason,
Maintenance is affirmed.
SO ORDERED.
__________________________
Secretary of Labor
Washington, D.C.
OAA:TMORRISS:kg:05/16/95
Room S-4309:FPB:523-9728
[ENDNOTES]
[1] For the purpose of this case only, I withdraw the authority
delegated to the Deputy Secretary by order dated November 25,
1991, 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 (1991).
[2] Petitioner also requests oral argument. The regulation at
29 C.F.R. § 8.16(a) allows oral proceedings in MOSCA cases
to "simplify the issues presented" or to "expedite or facilitate
the disposition of the proceeding." Such proceedings are
discretionary. 29 C.F.R. § 8.16(b). Because I find that
the issues in this case can be resolved by reference to the
Record, including the parties' several briefs, and existing
precedent, Petitioner's request for oral argument is denied.
[3] The parties agree that the contract provides for a base
period beginning June 1, 1988, and four option years beginning
October 1, 1988, with the fourth year ending September 30, 1992.
[4] By letter dated May 2, 1988, the Contracting Officer
forwarded to the Wage and Hour Division the first request,
dated April 11, 1988, with a statement that the proposed
classifications and wage rates had been approved. AR, Tab G.
The Contracting Officer apparently forwarded the second and third
requests to Wage and Hour on March 22, 1989, and May 4, 1989,
respectively. See Administrator's Statement at 3 n.4.
The only classifications and wage rates at issue are some of
those
in the first request which are conformed to Wage Determination
(WD) 81-1240 (Rev. 4). Id.
[5] Harbert alleges that the Contracting Officer did not send
it a copy of this ruling until November 15, 1990, at which time
it was "formally advised" of Wage and Hour's determination.
Request for Review (Req. Rev.) at 2; AR, Tab E. Harbert alleges
that it orally requested information regarding the conformance
ruling on a regular basis but heard nothing until that date.
Req. Rev. at 2. Counsel for the Administrator represents that
counsel for the Contracting Officer advised her that the
Contracting Officer notified Harbert of the ruling soon after
it was issued, but apparently did not forward a copy until
November 1990. Administrator's Statement at 3 n.5.
[6] By letter dated April 26, 1991, Harbert sought
clarification of the final ruling, asking the DAA to confirm that
the final ruling applied only to the initial base period of the
contract. AR, Tab B. The DAA replied that the regulations
required the conformed wages to be paid from the first day
contract work is performed, subject to modification for contract
extension periods by either a new conformance request or use of
the "indexing procedure." AR, Tab A.
[7] Wage and Hour's obligation is to transmit the conformance
ruling to the Contracting Officer. 29 C.F.R. §
4.6(b)(2)(iii).
[8] Moreover, at least part of the responsibility for the delay
in the initial ruling in this case is attributable to Harbert in
that it did not submit all of the conformance requests at the
same time. The second and third requests, which were addressed
in the initial conformance ruling, were forwarded to Wage and
Hour approximately one year after the initial request.
See
note 5 supra. I also note that the record does not
reflect
that at any time before the initial ruling was issued did
Harbert complain about the delay. Harbert also delayed
seeking reconsideration of the conformance ruling from at least
November 15, 1990, when it acknowledges the ruling was received,
until February 20, 1991. See AR, Tab E.
[9] This application of the regulation is consistent with court
decisions construing similar statutory directives. SeeBrock v. Pierce County, 476 U.S. 253, 266 (1986)
(Secretary does not lose power to recover misused funds under the
Comprehensive Employment and Training Act after expiration of the
120 day period provided for the Grant Officer to issue a final
determination).
[10] Along with its Supplemental Response, Harbert submitted a
Supplement to the Administrative Record. As explained
infra, even if I were to consider the information
contained therein, it would not alter the outcome of this case.
[11] This is not to say, as Harbert fears, Pet. Reb. at 6-7,
that the Administrator is free to exclude from the Administrative
Record, material timely presented in support of a requested
conformance action. There is no indication in this case,
however, that the Administrator excluded any material made
available prior to the final ruling.
[12] Harbert argues that the test of reasonableness must be
determined by reference to its conformance actions and not Wage
and Hour's subsequent conformance rulings. In the event that
both Harbert's and Wage and Hour's actions are reasonable,
Harbert contends that the ruling must be in its favor.
Petitioner's Supplemental Response at 24-26. In view of my
conclusion, as explained infra, that none of Harbert's
proposed conformance actions in this appeal satisfy the
reasonable relationship test, I need not address this issue.
[13] Harbert disparages the nature of the instruction to be
provided. Pet. Supp. Resp. at 17. Even accepting Harbert's
characterization of these duties, its conclusion that they do
not justify any increase in the hourly rate is not
reasonable.
[14] This description from WD 81-1240 (Rev. 4) pertains to
maintenance trades worker. AR, Tab F at 42.
