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<![CDATA[
CCASE:
NORTHERN VA SERVICE CORP.
DDATE:
19920826
TTEXT:
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[1] BOARD OF SERVICE CONTRACT APPEALS
UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, D. C.
In the Matter of:
NORTHERN VIRGINIA SERVICE
CORPORATION, Contractor BSCA Case No. 92-18
With respect to the applicability of wage rates collectively
bargained between the contractor and Laborers' International Union
of North America, AFL-CIO, Local 16 to employment of service
employees under a contract for custodial services at Kirtland
Air Force Base, New Mexico
BEFORE: Charles E. Shearer, Jr., Chairman
Ruth E. Peters, Member
DATED: August 26, 1992
DECISION OF THE BOARD OF SERVICE CONTRACT APPEALS
This case is before the Board Of Service Contract Appeals on
the petition of the United States Department of the Air Force
("Petitioner"), seeking review of the August 16, 1989 Decision and
Order of Chief Administrative Law Judge ("ALJ") Nahum Litt. The
case arose pursuant to Petitioner's request for an administrative
hearing to determined whether there existed a "substantial
variance" (within the meaning of section 4(c) of the
McNamara-O'Hara Service Contract Act of 1965, as amended (41 U.S.C.
[sec] 351 et seq.; "SCA")), between the wages prevailing in the
locality and those provided in the collective bargaining agreement
entered by Northern Virginia Service Corporation and Laborers'
International Union of North America, Local 16. For the reasons
stated below, the petition for review is dismissed as moot. [1]
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[2] I. BACKGROUND
Northern Virginia Service Corporation ("NVSC") and the United
States Air Force contracted for NVSC to perform janitorial services
at Kirtland Air Force Base, New Mexico for the period August 28,
1985 through September 30, 1988; the contract was extended by the
parties to the agreement until May 1, 1989. During the contract
NVSC and Local 16 entered into a collective bargaining agreement
("CBA"), providing, inter alia, for hourly wages of $7.50 for
custodians and $7.60 hourly for buffers, strippers, and scrubbers.
Prospective wage increases were also negotiated, raising these wage
levels to $7.75 and $7.85 as of October 1, 1989.
The case was initiated at the request of the Air Force,
seeking a determination that a substantial variance existed between
the CBA rates and those actually prevailing in the area. Section
4(c) of the SCA and the implementing regulations provide for an
administrative process whereby such collectively bargained wages
(and/or fringe benefits) under a Federal service contract may be
rolled back to the level of wages and benefits actually prevailing
in the locality, if a substantial variance can be shown.
The Wage and Hour Division issued an Order of Reference,
commencing the administrative hearing process. On July 11-12,
1989, the parties and the Wage and Hour Division participated in an
evidentiary hearing conducted by the Chief ALJ. Testimony was
given and documentary evidence received into the record, and, on
August 16, 1989, the Chief ALJ issued his Decision and Order,
ruling that the Air Force had not made a clear showing that a
substantial variance existed. On September 8, 1989, the Air Force
filed a petition for review of the ALJ's Decision and Order.
II. DISCUSSION
Our review of the record shows that the initial contract in
this matter has long been concluded. Furthermore, the follow-on
contract has had an initial one- year term and at least two option
years may have been exercised. The CBA and the collectively
bargained rates at issue in this matter expired on September 30,
1991. The wage determination which reflected those CBA rates would
have reached expiration by this time./FN1/[2]
/FN1/ The Board of Service Contract Appeals was established
pursuant to Secretary's Order 3-92 (July 10, 1992), 57 Fed. Reg.
33,414 (July 28, 1992). [2]
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[3] Given the passage of time and expiration of the applicable
wage determination, contracts, and CBA rates, the Board can provide
no remedy as sought during the ALJ hearing and in the petition for
review. It is well established that the Department of Labor cannot
provide retroactive effect to a finding of substantial variance.
In this regard, the Department's regulations clearly specify that
prospective relief, only, is available and that relief must be
under the same contract or option period at issue. 29 C.F.R.
4.163(c). The principle embodied in that regulation has been
recognized in previous final decisions under the SCA. See, In the
Matter of Harry A. Stroh Associates, Inc., Case No. 84-CBV-2 (Dec.
of the Deputy Secretary)(April 8, 1988).
The Board finds that the time delays in the administrative
substantial variance proceedings are unfortunate. In the future,
the Board will place any substantial variance matter on its
expedited decision calendar at the request of a party or interested
person or sua sponte. We further urge the Office of Administrative
Law Judges to conduct administrative proceedings arising under
section 4(c) of the SCA with all deliberate speed calculated to
bring such a case to conclusion so that meaning may be brought to
the substantial variance provision.
For the foregoing reasons, this matter is hereby dismissed as
moot. No party or interested person has filed a motion for
dismissal of this matter on mootness grounds. Therefore, for good
cause shown, any party or interested person may seek the Board's
reconsideration of this dismissal within thirty days of the date of
this decision.
BY ORDER OF THE BOARD:
Charles E. Shearer, Jr., Chairman
Ruth E. Peters, Member
Gerald F. Krizan, Esq.
Executive Secretary
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