U.S. Department of Labor Administrative Review Board
200 Constitution Avenue, N.W.
Washington, D.C. 20210
ARB CASE NO. 96-192
(ALJ CASE NO. 95-CBV-1)
(ALJ CASE NO. 93-CBV-1)
DATED: January 6, 1998
In the Matter of:
Applicability of Wage Rates and Fringe
Benefits Collectively Bargained by Ceres
Gulf Inc, and the International Longshore-
men's Association (ILA), AFL-CIO, to
Employment of Service Employees under a
Contract for Stevedoring and Related
Terminal Services at Container Freight
Station, New Orleans, Louisiana ("Ceres
Gulf, inc. & ILA")
and
Applicability of Wage Rates and Fringe
Benefits Collectively Bargained by Ryan-
Walsh, Inc. and the International Longshore-
men's Association (ILA), AFL-CIO, to
Employment of Service Employees under a
Contract for Stevedoring and Related
Terminal Services at MTMC Gulf Outport,
New Orleans, Louisiana ("Ryan-Walsh, Inc.
& ILA")
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
FINAL DECISION AND ORDER
This case is before the Administrative Review Board (Board) on a
Petition for Review (Petition) filed by the South Atlantic and Gulf Coast District Association
[Page 2]
of the International Longshoremen's Association (ILA) under the McNamara-O'Hara Service
Contract Act of 1965, as amended (SCA), 41 U.S.C. §§351-358 (1988), and its
implementing regulations, 29 C.F.R. Parts 4, 6, and 8 (1997). The case involves contracts
let in New Orleans by the Military Traffic Management Command (MTMC) for the loading
and unloading of containers used to ship military cargo to and from the U.S. The ILA sought
review of the Decision and Order Awarding Substantial Wage Variance Petition (D. and O.)
of Administrative Law Judge (ALJ) Lee J. Romero Jr. The ALJ had concluded that the
collectively bargained wages for work related to the contract at issue in 93-CBV-1 and the
collectively bargained wages and fringe benefits for work related to the contract at issue in
95-CBV-1 were substantially at variance with the wage rates which prevailed for services of
a character similar in the locality and ordered the Wage and Hour Administrator to issue a new
wage determination. Neeb-Kearney and Co., Inc. (Neeb-Kearney) filed a memorandum in
opposition (Op. Mem.) to the Petition. Pursuant to a September 19, 1996 order of the Board,
the Acting Administrator for the Wage and Hour Division (Administrator) filed a Statement.
On November 6, 1997, the ILA filed a motion to dismiss the petition
for wage variance and to vacate the ALJ's opinion on grounds of mootness. On November
10, 1997, the Board ordered the parties to file a response to the ILA's motion on or before
November 25, 1997. Neeb-Kearney, the Administrator, and intervening interested party
Teamsters Local 959, filed responses to the motion to dismiss. For the reasons that follow,
we now grant the motion to dismiss and vacate the ALJ's decision.
DISCUSSION
The ILA asserts that Contract #DAHC21-94-R-0-004, which is the
subject of 95-CBV-1, and its extension, expired effective April 17, 1997. Motion at 1-2. The
contract which was the subject of 93-CBV-1 has also expired. The ILA also asserts that the
facility at which the work under the contract was being performed has been closed, that a
successor contract was not let for bid or awarded in the Port of New Orleans, and that the
MTMC cargo which is the subject of these cases is now handled in ports other than New
Orleans. Id. at 2. The ILA argues that because under the SCA the only relief that
might be afforded Neeb-Kearney is prospective, the wage variance issue presented in the cases
is now moot. The Administrator agrees with this assessment and also argues that the ALJ's
decision should be vacated. Acting Administrator's Response to Motion to Dismiss.
[Page 3]
We conclude that because the relief which could be accorded under the
SCA in the circumstances of these cases is prospective only, and because the contracts at issue
have expired and have not been succeeded, these cases are moot. As the Board of Service
Contract Act Appeals has held:
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.
Porshia Alexander of America, Inc., BSCA Case No. 92-20 (August 26, 1992),
citing 29 C.F.R. §4.163(c). See also Meldick Services, Inc., BSCA Case
No. 92-19 (August 26, 1992); Northern Virginia Service Corporation, BSCA Case
No. 92-18 (August 26, 1992); New LTR Corporation, Case No. 86-CBV-1 (Dep.
Sec. Dec.) (February 22, 1991); Harry A. Stroh Associates., Inc., Case No.
84-CVBV-2 (Dep. Sec. Dec.) (April 8, 1988).
We are not persuaded by Neeb-Kearney's argument that the case falls
within the exception to the mootness doctrine for matters which are capable of repetition yet
evading review. Southern Pacific Terminal Company v. ICC, 219 U.S. 498
(1911). As Neeb-Kearney points out (Response at unnumbered p. 3), in order for that
doctrine to apply there must be a "reasonable expectation or a demonstrated probability
that the same controversy will recur involving the same complaining party. . . ."
Murphy v. Hunt, 455 U.S. 478, 482-83 (1982), quotingWeinstein v. Bradford, 423 U.S. 147, 149 (1975) (per curium). Here Neeb-Kearney makes no showing that the same controversy involving it and the MTMC will
recur.1 Therefore these
cases are moot.