U.S. Department of Labor Administrative Review Board
200 Constitution Ave, NW
Washington, DC 20210
ARB CASE NO. 98-001
DATE: September 23, 1998
In the Matter of
COURT SECURITY OFFICERS
[OF AUSTIN, TEXAS]
FINAL DECISION AND ORDER
This case arises under the McNamara-O'Hara Service Contract Act of
1965, as amended, 41 U.S.C. §351 et seq. (1994) (SCA), and the regulations at 29
C.F.R. Parts 4 and 8 (1998). The Court Security Officers in Austin, Texas (CSOs of Austin, or
Petitioner) seek review of the September 8, 1997 decision of the Acting Administrator of the
Wage and Hour Division (Administrator) denying reconsideration of SCA Wage Determination
94-2503 (Rev. 3)(5/17/96). For the reasons set forth below, the Administrator's decision is
affirmed, and the petition is denied.
BACKGROUND
Court security officers are responsible for courtroom and
courthouse security. Pursuant to a contract with the United States Marshal Service, Akal Security,
Inc. (Akal) employs court security officers who work at the United States Courthouse in Austin,
Texas. Petition for Review (Pet.) at 1. Akal's contract is subject to the Service Contract Act.
In May, 1996 the Wage and Hour Division issued wage determination WD
94-2503 (Rev. 3) containing minimum wage rates applicable to service contracts in a 15-county
area that included Austin, Texas. The wage determination rate for court security officers was
$10.74 per hour. Administrative Record (AR) Tab R.
[Page 2]
By letter dated September 27, 1996, petitioner CSOs of Austin requested
review and reconsideration of the $10.74/hr. court security officer wage rate, pursuant to 29
C.F.R. §4.56. Included with Petitioner's letter was a short tabulation of wage rates paid to
other employees in the Austin area who performed security functions allegedly similar to court
security officers, including (a) game wardens working for the Texas Parks and Wildlife
Department; (b) police officers working for the city of Austin; (c) deputy sheriffs and deputy
constables working for Travis County; and (d) employees working in a "Trooper II"
job category. The wage rates for these other job titles ranged from $14.27/hr. to $16.91/hr. Based
on this limited data, Petitioner asserted that the $10.74/hr. court security officer wage rate in WD
94-2503 (Rev. 3) was below the locally prevailing rate for security work, and asked that a new
wage determination be issued. AR Tab M. The Wage and Hour Division responded to
Petitioner by letter of October 18, 1997, issued by Nila Stovall, Chief, Branch of Service Contract
Wage Determinations (Stovall). The Division advised CSOs of Austin that the wage data
submitted with Petitioner's September 17 request could not form the basis for a new wage
determination rate, because the job duties of the positions that Petitioner had surveyed were
significantly different from the duties of court security officers. AR Tab L.
The Division further noted that in 1995 it had adopted a uniform
methodology for issuing wage rates for all "protective service occupations" that were
rated at the GS-6 pay rate, including court security officers. In addition, the Division advised
CSOs of Austin that a new wage determination for the Austin area had been issued (Revision 4)
with a wage rate of $11.47/hr. for court security officers, but that the higher wage rate would be
effective only prospectively, i.e., for procurement contracts awarded after the date that
the modified wage determination had been issued. AR Tab L. The revised wage determination
(Revision 4) had been issued on October 15, 1997. AR Tab R.
Additional correspondence was exchanged. CSOs of Austin wrote to
Stovall on November 13, 1996, objecting to the earlier assertion that the duties of court security
officers were dissimilar to the game wardens, police officers, etc. whose wage rates had been cited
in Petitioner's original request for review and reconsideration. In support of this position, CSOs
of Austin attached an excerpt from the U.S. Marshal Service's court security officers handbook,
indicating that applicants for the court security officer position were required to have three years
of experience as a police officer. In addition, Petitioner asserted that court security officers
working at the courthouse in the Northern District of Texas were earning over $15 per hour, and
argued that the court security officers in Austin should earn a comparable wage. AR Tab K.
The Wage and Hour Division responded by letter of December 10, 1996,
detailing eight criteria used by the Division when evaluating data submitted by a party requesting
review and reconsideration of a wage determination. Among the criteria identified in the
December 10 letter was a requirement that any survey data developed by the Petitioner would
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have to cover the same geographic area and the same time period as the Bureau of Labor Statistics
(BLS) survey that had been used to develop the challenged wage determination. AR Tab J.
On January 30, 1997, CSOs of Austin again wrote to Stovall asking
specifically for information about the BLS survey so that the Petitioner could submit a usable
appeal. AR Tab I. Petitioner sent a follow-up letter on February 24. AR Tab H. The Division
responded by letter of March 10, 1997, advising Petitioner to contact BLS's Dallas regional office
or the BLS headquarters in Washington, D.C. AR Tab F. In addition, the Division sent a follow-up letter to Petitioner on April 4, 1997, suggesting that CSOs of Austin should focus its attention
on BLS's survey techniques, so that any supplemental data that Petitioner developed would track
the government's methodology. AR Tab D.
After reviewing the BLS survey data obtained from the Internet, CSOs of
Austin again wrote to Stovall on May 7, 1997, asserting that the BLS survey for the Austin area
did not include data on any local law enforcement personnel. In Petitioner's view, the wage rate
for court security officers found in the Division's wage determination therefore must be invalid.
Arguing that the Division's wage determination was arbitrary and capricious, CSOs of Austin
threatened to file suit in the U.S. District Court unless the Division issued a wage determination
based on the limited wage survey data that Petitioner had attached to its original September 27,
1996, request for review and reconsideration. AR Tabs C, M.
The Wage and Hour Division issued a final decision denying the request for
review and reconsideration by letter of September 8, 1997, over the signature of the Acting
Administrator's designee, National Office Program Administrator Corlis Sellers (Administrator).
The Division noted that the material submitted by CSOs of Austin did not include any specific
wage data on the court security officer classification, nor were there any job descriptions provided
for the several other occupations that had been included in Petitioner's limited survey. These job
descriptions would be needed in order to confirm that the occupations functioned at the equivalent
of a GS-6 level. AR Tab A.
In addition, the Administrator offered the following explanation for the
methodology originally used when calculating the court security officer wage determination rate
in WD 94-2503 (Rev.3):
[T]he Wage and Hour Division conducted a detailed review in July 1995 of the
Protective Service Occupations, including CSOs, to develop a uniform
methodology for determining SCA prevailing rates for these occupations. The
position of CSO is one of several Protective Service Occupational classifications
with a Federal grade equivalency of GS-6. The CSO, however, is not a surveyed
occupation for the Bureau of Labor Statistics' Occupational Compensation Survey
[Page 4]
Program (OCSP), the primary data source used to develop SCA WDs [wage
determinations]. Several other Protective Service Occupations (Police Officer, Firefighter,
and Corrections Officer) with Federal Grade Equivalencies of GS-6, are standard OCSP
survey occupations. In the absence of direct survey data for CSOs, Wage and Hour
adopted a methodology of basing the CSO rate on a simple average of the mean survey
rates for all of the GS-6s surveyed. If Metropolitan Statistical Area (MSA) data are not
available for the GS-6 Protective Service classes, then the rate is based on the average of
regional OCSP data GS-6 occupational classes listed under the broad occupational
category of Protective Services.
AR Tab A. CSOs of Austin filed its Petition for Review on September 26, 1997.
DISCUSSION
The SCA's primary purpose is to ensure that employees on a federal
service contract are paid no less than locally prevailing wage rates. 41 U.S.C. §351(a)(1),
(2). The Wage and Hour Administrator is the primary interpreter of the contract labor standards
and implementing regulations, with the Board acting in an appellate capacity. 29 C.F.R.
§8.1(d)(1998). Although the Board exercises the full authority of the Secretary under the
Service Contract Act, 29 C.F.R. §8.1(c), we ordinarily defer to the expertise and experience
of the Administrator, and will upset a decision of the Administrator only when the Administrator
fails to articulate a reasonable basis for the decision, taking into account the applicable law and
the facts of the case.
The Secretary's regulations allow interested parties to challenge the
accuracy of a wage determination by submitting a request for review and reconsideration. Any
such request must be accompanied by supporting evidence. 29 C.F.R.§4.56(a). Upon
receiving such a request, the Administrator reviews the wage determination rate in light of (1) the
data originally used for issuing the wage determination, (2) the evidence produced by the party
challenging the wage determination, and (3) any additional data found relevant. After completing
this evaluation, the Administrator can issue a new wage determination, revise the existing wage
determination, or affirm the existing wage determination. 29 C.F.R. §4.56(a)(2).
In this case, the Administrator denied Petitioner's request for review and
reconsideration because the very limited wage data submitted by CSOs of Austin was insufficient
to justify an adjustment to the wage determination rate for court security officers. The data
submitted by CSOs of Austin lacked job descriptions and did not include information that would
make it possible for the Wage and Hour Division to determine how the wage data related in time
to the period covered by the BLS survey that formed the basis for wage determination WD 94-2503 (Rev. 3). Moreover, it was not possible to determine whether the occupational data covered
[Page 5]
workers in the same geographic territory covered by BLS. AR Tabs A, J. The Administrator
offered adequate guidance to Petitioner regarding the type of data that would be needed to prevail
in a request for reconsideration; however, CSOs of Austin simply did not submit the necessary
data. Petitioner's failure to provide sufficient reliable and relevant wage data is reason enough for
this Board to uphold the Administrator's decision.
Instead of addressing the merits of its case (i.e., the very limited
data that it presented to the Wage and Hour Division), CSOs of Austin raise two tangential
arguments: first, that the Administrator's methodology for issuing court security officer rates is
arbitrary and capricious; and second, that the court security officer rates for Austin, Texas must
be erroneous because they are lower than the wage determination rates for the same work in Ft.
Worth and Dallas, Texas. Brief in Support of Petition for Review at 4-6. We disagree on both
counts.
The Administrator's wage determination methodology --
The process of determining wage rates is dependent on the gathering of statistical data
documenting wage payments in different localities. The Wage and Hour Division gathers and
considers data from a variety of sources, although the most frequent sources of information are
the wage surveys conducted by the Bureau of Labor Statistics. 29 C.F.R. §4.51(a).
However, the SCA regulations recognize that in some situations the Division may not have survey
data directly documenting local wage rates for a particular job classification that will be needed
on a federal service contract. When this occurs,
[e]stablishment of a prevailing wage rate for certain such
classifications may be accomplished through a "slotting"
procedure, such as that used under the Federal pay system. 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.
29 C.F.R. §4.51(c). The validity of the "slotting" procedure has been affirmed
in prior SCA decisions. See D.B. Clark III, ARB Case No. 98-106 (Sept. 8, 1998) slip
op. at 4-5; Kord's Metro Services, Inc., BSCA Case No. 94-06 (Aug. 24, 1994)
slip op. at 5; Meldick Services, Inc., 87-CBV-07, Dep'y Sec'y (Mar. 23, 1990);
Big Boy Facilities, Inc., 88-CBV-7, Dep'y Sec'y (Jan. 3, 1989) slip op. at 13-14.
Because the court security officer position is not independently surveyed
as part of the BLS survey program, the Wage and Hour Division relies on wage data from three
other GS-6 equivalent protective services positions: Police Officer, Firefighter and Corrections
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Officer. When issuing a wage determination rate for the court security officer classification, the
Division adopts the simple average of the mean wage rates for each of these three positions as
determined by the BLS survey. AR Tab A. We find that this approach, which merges the data
from three other GS-6 protective service positions to generate the rate for the court security officer
(also a GS-6 equivalent), is a reasonable application of the slotting process. Petitioner's assertion
that the Administrator's methodology is arbitrary and capricious fails.
1 CSOs of Austin assert that
the wage determination rate for court security officers is $16.33/hr. in Ft. Worth, and $17.28/hr. in Dallas.
Brief in Support of Petition for Review at 5. However, according to the Administrator, the correct wage
determination rate is $15.33/hr. in Ft. Worth and $12.63/hr. in Dallas. Statement of the Acting
Administrator in Response to Petition for Review at 8; AR Tabs S, T. The Administrator notes that the
wage rates actually paid in Ft. Worth and Dallas rates might be higher than the rates specified in the
respective area wage determinations if the court security officers in those locations work under collective
bargaining agreements. Id. Regardless of the amount, we find the disparity between the Austin,
Dallas and Ft. Worth wage determination rates to be irrelevant to the merits of this Petition.
2 For an analysis of
the Board's authority to address constitutional claims, see Tom Rob, Inc., WAB Case No. 94-03
(June 21, 1994) slip op. at 10-11.