In re: Review and Reconsideration
of Wage Rates for Detention Officers in
Union County, N.J., WD 94-2353, Rev. 9
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances: For the Petitioner: Gerald Riordan, U.S. Department of Justice, Immigration and Naturalization Service,
South Burlington, Vermont
For the Respondent: Roger Wilkinson, Esq.; Douglas Davidson, Esq.; Steven Mandel,
Esq., U.S. Department of Labor, Washington, D.C.
For the Intervenor:
Dannie B. Fogleman, Esq.,
Ford & Harrison, LLP, Washington, D.C.
FINAL DECISION AND ORDER
This matter is before the Administrative Review Board (ARB) pursuant
to the McNamara-O'Hara Service Contract Act of 1965, as amended (SCA or the Act), 41 U.S.C.
§351 et seq. (1994), and implementing regulations set forth at 29 C.F.R. Parts 4
and 8 (1999). Petitioner Immigration and Naturalization Service (the INS) seeks review of a
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final ruling by the designee of the Labor Department's Wage and Hour Deputy Administrator
(Administrator) denying the INS's request for review and reconsideration of the Detention
Officer wage rate contained in Service Contract Act Wage Determination (WD) 94-2353 (Rev.
9). We have jurisdiction over the appeal under 29 C.F.R. §§4.56(b) and 8.1(b)
(1999).
BACKGROUND
The INS operates a detention facility in Elizabeth, New Jersey, for aliens
who are detained temporarily in the agency's custody. On June 19, 1998, the INS submitted a
Standard Form (SF)-98, "Notice of Intention to Make a Service Contract and Response to
Notice," to the Department of Labor's Wage and Hour Division giving notice that INS was
soliciting bids from private service contractors to operate the facility for the temporary
residential care and housing of detained aliens. The SF-98 submitted by the INS specifically
indicated that workers in the "Detention Officer" job classification would be
employed on the contract. Administrative Record (AR), Tab C, Attachment 1.
In response to the INS's notice, the Wage and Hour Division issued several
wage determinations. Among the wage determinations was Wage Determination 94-2353 (Rev.
9) (6/1/98), applicable to service contracts in the New Jersey Counties of Essex, Hudson, Morris,
Sussex and Union. AR Tab D. Elizabeth, New Jersey, is in Union County. This wage
determination included a $21.30/hr. wage rate for the Detention Officer job classification.
WD 94-2353 was based on a 1995 Bureau of Labor Statistics (BLS)
Occupational Compensation Survey for the Newark Primary Metropolitan Statistical Area,
consisting of Essex, Morris, Sussex and Union Counties. AR Tabs A, E. The BLS Survey did
not include published wage data for Detention Officers, one of the primary positions to be
utilized in the solicited contract. However, because the Survey did include wage rates for
Firefighter ($20.81/hr.) and Police Officer ($21.78/hr.) both protective service occupations
with the same Federal grade equivalent 6 rating as Detention Officer the Wage and Hour
Division imputed a wage rate for Detention Officers by averaging the firefighter and police
officer rates, using the "slotting" methodology provided in 29 C.F.R. §4.51(c)
(1999). This resulted in the wage rate for Detention Officer of $21.30 per hour. AR Tab A.
After receiving the Labor Department's wage determination, the INS
contracting officer wrote to the Administrator on July 19, 1999, requesting review of the wage
rate for Detention Officer. AR Tab C; see 29 C.F.R. §4.56(a). INS asserted that
the Detention Officer rate should not be slotted with other occupations because the position is
specific to the INS. AR Tab C. Among the various materials submitted by INS was an extensive
position description for a Detention Officer. AR Tab C, Attachment 2.
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In a final ruling letter issued September 2, 1999, by the Administrator's
designee, Charles E. Pugh, Deputy National Office Program Administrator, the Administrator
denied the INS's request for review and reconsideration, explaining that when
a wage survey for a particular locality . . . result[s] in insufficient
data for one or more job classifications . . . [e]stablishment of a
prevailing wage for certain such classifications may be
accomplished through a 'slotting' procedure. . . . 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.
AR Tab A. The Administrator noted that the Detention Officer, Firefighter and Police
Officer classifications all have Federal grade equivalents of GS-6, that there was no independent
wage data from the BLS survey to establish a wage rate for the Detention Officer classification,
and that it therefore was appropriate to derive a rate for the Detention Officer by averaging the
Firefighter and Police Officer rates. Id.
The INS appealed the Administrator's Final Ruling letter to the ARB on
September 21, 1999. Corrections Corporation of America (CCA), which operates the INS's
Elizabeth, N.J., detention facility and was the only bidder on the contract, filed a Notice of
Intervention on October 19, 1999, and later submitted a brief.
We review the Administrator's final rulings under the Service Contract Act
to determine whether they are consistent with the statute and regulations, and are a reasonable
exercise of discretion. Dep't of the Army, ARB Case Nos. 98-120, 121, and 122 (Dec.
22, 1999), slip op. at 16.
DISCUSSION
The Secretary has the responsibility under the SCA to determine "the
minimum monetary wages to be paid the various classes of service employees in the performance
of" Federal service contracts in excess of $2,500. 41 U.S.C. §351(a)(1). The usual
method employed by the Secretary to determine wage rates for a service contract is to rely on
information in area surveys conducted by the Bureau of Labor Statistics. 29 C.F.R.
§4.51(a). When wage data on a specific job classification is not included in a BLS survey,
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the Department of Labor's SCA regulations provide a method for dealing with this omission
called "slotting":
(c) Slotting wage rates. In some instances, a wage survey
for a particular locality may result in insufficient data for one or
more job classifications that are required in the performance of a
contract. Establishment 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 [by BLS] and those for which no survey data is available.
29 C.F.R. §4.51(c). The Administrator's slotting methodology frequently has been
reviewed by this Board and its predecessors, and has been found to be an appropriate tool for
developing wage determination rates under the Act. See Court Security Officers [of Austin
Texas], ARB Case No. 98-001 (Sept. 23, 1998), slip op. at 5; D.B. Clarke 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. It has been held that "[s]lotting is a necessary tool used by the Wage and
Hour Division in coping with the need to issue large numbers of wage determinations on a timely
basis." Richard L. Roudebush VA Medical Center, Case No. 90-SCA-1, Dep'y
Sec'y Dec. (Jan. 21, 1992), slip op. at 4. In addition, the Board has held more generally that
when reviewing wage determinations, it will "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." Court Security Officers [of Austin
Texas], slip op. at 4.
In its Request for Review and Reconsideration, the INS made two major
arguments. First, the agency argued that it is inappropriate to slot the Detention Officer with the
police office or firefighter classifications, because the duties of the Detention Officer are
"specific" to the INS. AR Tab C at 1. Second, the INS questioned the
appropriateness of the $21.30/hr. wage rate because it is substantially higher than the rates that
allegedly would be paid to Federal employees performing this work. Id. Attached to
the INS submission were a variety of SCA wage determinations for the New York and New
Jersey areas, along with the INS's position description for Detention Officers and a brief
tabulation compiled by the INS of the salary levels paid to Federal employees performing this
work. Id., Attachments 1, 2, and 3.
Before the ARB, the INS offers additional information and argument in
support of its claim that the $21.30/hr. wage rate for Detention Officers is excessive. The agency
1 Nowhere in its pleading does the INS
declare specifically what job classification was assigned to these workers, who apparently provided
"detention services" without being classified as Detention Officers.
2 The CCA data does not include
key information that normally would be needed to evaluate its relationship to a locally "prevailing
rate," such as position descriptions and detailed information concerning the number of workers
employed at the various pay levels. The "review and reconsideration" procedure
contemplates that this kind of complete presentation would be submitted in the first instance to
the Administrator, in which case it also would become part of the record considered by the Board on
appeal. As noted, the Board is precluded from basing its decision on extra-record materials; however,
when reliable data is presented calling into question the Administrator's decision, the Board has
discretion to consider a remand. 29 C.F.R. §8.1(d); COBRO Corp., supra.
3 We note also that some of the
assertions in CCA's brief concerning the work performed by its Detention Officers are flatly contradicted
by the rigorous requirements found in the INS's position description.