For Respondent Administrator, Wage and Hour Division: Ford F. Newman, Esq., Douglas J. Davidson, Esq., Steven J. Mandel, Esq., Howard M. Radzely, Esq., U.S. Department of Labor, Washington, D.C.
FINAL DECISION AND ORDER
These disputes concern wage determinations issued pursuant to the McNamara-O'Hara Service Contract Act of 1965 (SCA or Act), as amended, 41 U.S.C.A. § 351 et seq. (West 1987). The wage determinations prescribe the minimum wages and fringe benefits FlightSafety Services Corporation (FSSC) employees are entitled to receive under FSSC's service contracts with the U.S. Department of Defense. The Administrator, Wage and Hour Division (WHD), U.S. Department of Labor, denied most of FSSC's requests that the wage determinations be changed. FSSC now petitions the Administrative Review Board (ARB or Board) to review the Administrator's rulings. We dismiss FSSC's Petition for Review in Case No. 02-085. In Case No. 03-075, we affirm the Administrator's final ruling denying FSSC's request that the wage determinations be modified.
BACKGROUND
FSSC is a Federal government service contractor. It contracts with the United States Department of Defense, Air Force Mobility Command to provide "academic and simulator instruction to student aircrew for the KC-135 and C-5 aircraft at various Air Force Bases across the country." Case No. 02-085 Petition for Review (Pet. for Rev.) at 3-4. FSSC's government contracts are subject to the prevailing wage requirements contained in the SCA and its implementing regulations found at 29 C.F.R. Part 4 (2003).
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The Secretary of Labor has delegated administration of the SCA to the Administrator of the Wage and Hour Division (WHD). The Administrator is responsible for determining the minimum hourly wage and fringe benefit rates to be paid to various classifications of service workers who may be employed on service procurement contracts in excess of $2,500 entered into by the United States or the District of Columbia, the principal purpose of which is to provide services through the use of service employees in the United States. See 41 U.S.C.A. § 351(a). These rates are listed in wage determinations that are then included in Federal service procurement contracts as the required minimum wage payments due service employees. Id.; See 29 C.F.R. § 4.3.
Wage determinations are based either on locally prevailing rates for service employees ("prevailing in the locality" determinations; see 29 C.F.R. § 4.51), or the rates in any collective bargaining agreements that may already be in effect governing the pay of the workforce at the contract facility. See 41 U.S.C.A. § 351(a). After a contracting agency notifies WHD of the classification of workers it will employ on the service contract, the WHD issues one of the two types of wage determinations, identifying the minimum hourly wage rates and fringe benefits payable to the various service employee classifications to be employed under the contract. 29 C.F.R. § 4.3.
"Prevailing in the locality" wage determinations applied to FSSC's contracts at the various Air Force bases. These locality wage determinations are "based on all available pertinent information as to wage rates and fringe benefits being paid at the time the determination is made." 29 C.F.R. § 4.51(a). The Administrator usually relies on wage information that is "derived from area surveys conducted by the Bureau of Labor Statistics, U.S. Department of Labor, or other Labor Department personnel." Id. The WHD then subjects the available pertinent information to various statistical and analytical methodologies deemed proper under the facts of each wage determination and establishes the locality prevailing rates for the service employee classifications.
If, however, a wage survey for a particular locality results in insufficient data to determine wages for a job classification, the Administrator establishes the prevailing wage rate through the "slotting" procedure, described below. See 29 C.F.R. § 4.51(c).
1 "Any interested party affected by a wage determination issued under section 2(a) of the Act may request review and reconsideration by the Administrator." 29 C.F.R § 4.56 (a)(1).
2 The Administrator shall, upon receipt of a request for reconsideration, review the data sources relied upon as a basis for the wage determination, the evidence furnished by the party requesting review or reconsideration, and, if necessary to resolve the matter, any additional information found to be relevant to determining prevailing wage rates and fringe benefits in a particular locality. The Administrator, pursuant to a review of available information, may issue a new wage determination, may cause the wage determination to be revised, or may affirm the wage determination issued, and will notify the requesting party in writing of the action taken. 29 C.F.R. § 4.56 (a)(2).
3 "In no event shall the Administrator review a wage determination or its applicability after the opening of bids in the case of a competitively advertised procurement, or, later than 10 days before commencement of a contract in the case of a negotiated procurement, exercise of a contract option or extension." 29 C.F.R. § 4.56 (a)(1).
4 Generally, where there is insufficient BLS wage data, the WHD resorts to "slotting:"
Under this procedure, wage rates are derived for a classification based on a comparison of equivalent or similar job duty and skill characteristics between the classifications studied and those for which no survey data is available. As an example, a wage rate found prevailing for the janitorial classification may be adopted for the classification of mess attendant if the skill and duties are known to be rated similarly under pay classification schemes. (Both classifications are assigned the same wage grade under the Coordinated Federal Wage System and are paid at the Wage Board grade 2 when hired directly by a Federal agency.)
29 C.F.R. § 4.51(C).
5 The Administrator granted FSSC's requests for reconsideration concerning instances where the WHD had inadvertently failed to include in the wage determinations increases for Flight Simulator/Instructor (Pilot), Instructor, and CBT Specialist/Instructor. The Administrator noted, however, that the revised wage rates could not be applied retroactively.
6 FSSC had filed similar requests on August 28, 2002, but had mistakenly referenced their application to the contract period commencing October 1, 2001, instead of October 1, 2002. The August 28 requests were denied as untimely by letter dated September 20, 2002. AR, Tab C. This ruling was appealed to the Board in Case No. 03-009. On the Administrator's motion, the Board remanded the case for issuance of a new ruling. In the meantime, FSSC submitted another request for reconsideration dated October 28, 2002. This request culminated in the Administrator's February 26, 2003 final ruling and the filing of Case No. 03-075.
7 Pursuant to the Board's regulations, "[u]pon its own initative [sic] . . . the Board may consolidate any proceeding or concurrently consider two or more appeals which involve substantially the same parties, or issues which are the same or closely related, if it finds that such consolidation or concurrent review will contribute to a proper dispatch of its business and to the ends of justice . . . ." 29 C.F.R. § 8.14.
8 Although the Administrator found the requests untimely, she proceeded to address FSSC's arguments and supporting information because she found that the requests raised issues that "may have an impact on subsequent wage determinations issued for this and other procurements." AR, Tab A at 2.
9 Pet. Brief, Appendix Exh. G. Counsel for the Administrator avers that the "documents were not date-stamped as received by the Wage and Hour Division until October 11, 2001." Adm. Stmt. in Opp. to Pet. for Rev. at 3. Counsel further suggests that the "events of September 11 may have played a part in this delay." Id.
10 FGE ratings are derived from two sources. The first is the General Schedule (GS) that contains the rates of wages applicable to Federal white-collar employees. The other is the Wage Grade (WG) that establishes the wages payable to blue-collar employees. The WHD presently assigns an FGE rating of GS-11 to the Flight Simulator/Instructor (Pilot) classification; the ETM subclassifications are assigned WG ratings of WG-10, WG-9, and WG-8 for ETM I, II, and III, respectively. FSSC contends that the Flight Simulator/Instructor (Pilot) classification should be rated as a GS-12 and that the proper FGEs for ETM I, II, and III should be GS-11, -9 and –7, respectively.