-
4. The argument that higher wage determination rates on the ANET and WNET
contracts will prove disruptive of the contractors' labor relations is outside the scope
of this SCA proceeding.
Several of the Postal Service's air carriers note in their submissions to the
Administrator and their briefs to this Board that the existing wage determination rates already are
higher than the wage rates that they normally pay to their pilots flying on non-federal contracts, and
that the "high" SCA wage rates create significant labor relations problems for them
because they must pay workers on multiple wage tiers. See, e.g., AR97 Tab B Exh. 12
(Affidavit of K. Good).
Under the SCA, the Secretary is required to determine prevailing wage rates.
It is not at all surprising that the prevailing wage rate for any given job classification might be
higher than some vendors might ordinarily pay their employees on non-federal work, just
as the prevailing wage rate may, for other vendors, be lower than their customary pay scale.
Although we recognize the difficulty that this might pose for the employer, it is beyond the scope of
the Labor Department's concern in this case. There are a variety of options available to the business
community to address this dilemma, and we are confident that resourceful employers in the aviation
industry will find appropriate means for addressing such problems as they arise.
[Page 30]
Similarly, contrary to the argument raised by some of the parties, the
Administrator is under no obligation to issue wage determinations that reflect entry-level wage rates
for an occupation. While it is true that the Wage and Hour Division sometimes has subdivided an
occupational classification into multiple levels of skill and responsibility, reflecting the differing tasks
that are performed as workers mature into journeyman status (see, e.g., Raytheon
Systems Co., ARB Case No. 98-157 (Apr. 26, 2000)), there is nothing in the Service Contract
Act supporting the notion that the prevailing wage should be geared to entry-level wages; to the
contrary, the entire concept of prevailing wage rates requires that such rates should be the
result of an analysis of wages paid to all employees in a given job classification, regardless
of seniority or tenure.
VII. CONCLUSION
Based upon the record before us, we find that airline captains and first
officers are not learned professionals within the terms of the Secretary's Part 541 exemption
regulations. Therefore, we affirm the Administrator's determination that pilots are "service
employees" covered by the SCA under the statutory definition found at 41 U.S.C.A.
§357(b). We deny the Postal Service, airline industry and Air Force petitions for review on
this issue.
With regard to the wage rates for the pilot and first officer classifications found
in the Administrator's decision letter of December 13, 1996, we conclude that the Administrator's
methodology and the resulting wage determination rates are contrary to the statute and inconsistent
with the decisional law of this Board and its predecessors. To the extent that the various petitions
for review seek recission of the December 1996 wage rates, they are granted and this matter is
remanded to the Administrator to issue new wage determination rates for captains and first officers
in accordance with this decision.
The petition of Capt. Hal Winters specifically has urged the Board to reinstate
the wage rates found in the pre-December 1996 wage determination, WD-95-0029 (Rev. 1).
However, these wage rates de facto were withdrawn by the Administrator. They do not
represent a "final decision of the Administrator" (29 C.F.R. §8.2(b)), and therefore
are not before us. Although we disagree with the rationale that was advanced by the
Administrator in support of WD-95-0029 (Rev. 1), if the Administrator determines that pilots and
first officers on these procurements routinely work significantly fewer hours than their counterparts
at most other air carriers, he may conclude that wage rates such as these (based on all-industry data,
but discounted) would be a reasonable approximation of prevailing rates for the ANET and WNET
contracts, in light of the record before him.
In remanding to the Administrator to issue a new wage determination, we
emphasize that we do not direct the Administrator to conduct any new surveys in order to issue a new
wage determination for the Postal Service contracts; indeed, given the protracted length of this
proceeding, conducting a new survey arguably would work an unnecessary hardship on the workers
and the Postal Service contractors by adding further delay. The Administrator is encouraged to issue
a new wage determination based upon the ample material already in the record, as well as any other
material that the Administrator may find useful.
[Page 31]
The Administrator is urged to issue a new wage determination expeditiously,
consistent with this Decision. The Administrator is further ORDERED to submit a report
to this Board on the status of this matter every thirty days.
SO ORDERED.
PAUL GREENBERG
Chair
E. COOPER BROWN
Member
CYNTHIA L. ATTWOOD
Member
[ENDNOTES]
1 This case has been recaptioned to simplify
citation.
2 In this decision, the Administrative
Record that was filed initially on the wage rate issue, ARB Case No. 97-033, is referred to as
"AR97"; a Supplemental Administrative Record that was filed in the same appeal is referred
to as "AR97-Supp"; and the Administrative Record filed on the professional exemption issue,
ARB Case No. 98-131, is referred to "AR98."
3 In this brief, references to pleadings
submitted by the parties and intervenors are abbreviated as follows: