U.S. Department of Labor

U.S. Department of Labor

Administrative Review Board

200 Constitution Avenue, N.W.

Washington, D.C. 20210

MLB TRANSPORTATION, INC.

AND OWL, INC.,

PETITIONERS,

ARB CASE NO. 2016-0078

DATE: February 13, 2020

v.

ADMINISTRATOR, WAGE AND

HOUR DIVISION,

RESPONDENT.

Appearances:

For the Petitioners:

Les A. Schneider, Esq.; J. Larry Stine, Esq.; and Jonathan D. Gaul,

Esq.; Wimberly, Lawson, Steckel, Schneider & Stine, P.C.; Atlanta

Georgia

For the Administrator, Wage and Hour Division:

Kate S. O’Scannlain, Esq.; Jennifer S. Brand, Esq.; Sarah Kay Marcus,

Esq.; Jonathan T. Rees, Esq.; and Quinn Philbin, Esq.; U.S.

Department of Labor, Office of the Solicitor; Washington, District of

Columbia

Before: Thomas H. Burrell, Acting Chief Administrative Appeals Judge and

James A. Haynes and Heather C. Leslie, Administrative Appeals Judges

FINAL DECISION AND ORDER DENYING RECONSIDERATION IN PART,

GRANTING RECONSIDERATION IN PART, AND AFFIRMING THE

ADMINISTRATOR’S DENIAL OF RECLASSIFICATION

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PER CURIAM. This case arises under the McNamara-O’Hara Service Contract

Act of 1965, as amended (SCA). 41 U.S.C. § 6701 et seq. (2011) and implementing

regulations at 29 C.F.R. Parts 4, 6, 8, and 18 (2016). MLB Transportation, Inc., and

OWL, Inc., appeal the Administrator’s final ruling denying conformance procedures

and denying revision of applicable wage rates for drivers employed in furtherance of

MLB’s SCA contract. The Administrative Review Board (ARB or Board) denied the

petition for review on July 23, 2019. The parties asked for reconsideration. For the

following reasons, the ARB denies reconsideration in part, grants reconsideration in

part, and affirms the Administrator.

BACKGROUND

MLB Transportation, Inc., and OWL, Inc. (collectively MLB or Petitioners)

entered into an SCA-covered contract to provide wheelchair transportation services

for patients traveling to the Atlanta Veterans Administration Medical Center in

Decatur, Georgia. Contract number VA247-P-0957 between the Department of

Veterans Affairs (VA) and MLB began on October 1, 2009, and option-year four

became effective beginning October 1, 2013. MLB and the VA subsequently signed

a six-month extension of the contract from October 1, 2014, to March 30, 2015.

MLB and the VA entered into a new contract, VA247-15-D-0272, beginning on April

1, 2015. June 17, 2016 Admin. Determ. at 7.

The Wage and Hour Division, U.S. Department of Labor (WHD) conducted an

investigation and determined that MLB was not in compliance with the SCA

because non-emergency medical transportation (NEMT) drivers were improperly

classified as taxi-drivers rather than shuttle drivers. June 17, 2016 Admin.

Determ. at 1.

On March 6, 2014, MLB challenged WHD’s determination by asserting first

that NEMT drivers should not be classified as shuttle bus drivers but rather should

be classified at the lower rate for taxi drivers. MLB asserted that NEMT drivers

are much more like taxi drivers than shuttle drivers because the vans that they

drive do not require special commercial driving licenses. Id. at 2. MLB also

asserted that the wage rate for shuttle drivers on WD05-2133 did not represent the

prevailing wage and should be revised. June 17, 2016 Admin. Determ. at 1.

The Branch of Service Contract Wage Determinations, WHD (Branch)

declined to create a new classification, to reclassify workers as taxi drivers, or to

revise the wage rate for WD05-2133 for shuttle drivers. MLB’s request for

reclassification is similar to a conformance request. 1 Conformance requests are not

SCA’s conformance regulations provide both procedural and substantive guidelines

for adding a job classification to the wage determination that applies to a particular SCA1

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available if the employees in question perform duties that are covered by an

existing classification within the wage determination. Id. at 1–2, 4–5. The Branch

also denied MLB’s request to revise the wage rate for Shuttle Drivers. Id. at 2.

On December 9, 2014, MLB requested a review of the Branch’s decision by

the Administrator, WHD. The Administrator issued its final determination denying

MLB’s request on June 17, 2016. The Administrator determined that the NEMT

drivers were properly classified as shuttle drivers. Id. at 5. The Administrator also

determined that MLB’s March 6, 2014 challenge to the wage determination for

Contract number VA247-P-0957 was untimely under 29 C.F.R. § 4.56(a). However,

MLB’s challenge was timely with respect to the six-month extension of that

contract, and the Administrator proceeded to address MLB’s challenge to the wage

rate for Shuttle Drivers. Id. at 7.

On July 7, 2016, the Petitioners filed a Petition for Review of the

Administrator’s June 17, 2016 final determination. The ARB docketed the appeal

for review and set a briefing schedule. Notice of Appeal and Order Establishing

Briefing Schedule (July 14, 2016). On July 23, 2019, the ARB set aside the Order

Establishing Briefing and denied the petition for review. MLB moved the ARB to

reconsider the order denying the petition. The Administrator filed a response brief

supporting MLB’s motion in part.

JURISDICTION AND STANDARD OF REVIEW

The ARB has jurisdiction to hear and decide questions of law and fact arising

from the Administrator’s final determinations under the SCA. 29 C.F.R. §§

8.1(b)(1), (6). The Secretary of Labor has delegated to the Board authority to issue

final agency decisions under the SCA. Secretary’s Order 01-2019 (Delegation of

Authority and Assignment of Responsibility to the Administrative Review Board),

84 Fed. Reg. 13,072 (Apr. 3, 2019).

covered contract. See 29 C.F.R. § 4.6(b)(2)(i)–(vi). The regulations governing the SCA

authorize the Administrator to add an additional job classification and wage rate only if the

proposed classification meets the following test: 1) The work to be performed by the

classification is not within the scope of any classification listed on the wage determination;

and 2) the conformance does not combine two or more classes listed in the wage

determination into a new classification to be conformed or propose a new classification that

performs only part of the duties of an existing classification; and 3) the conformed rate

must bear a reasonable relationship to those classifications listed in the applicable wage

determination with comparable skills and duties. 29 C.F.R. §§ 4.6(b)(2)(i), 4.152(c)(1);

Andrew Aiken, ARB No. 08-009, slip op. at 7 (ARB Apr. 30, 2009).

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The ARB’s review is in the nature of an appellate proceeding. 29 C.F.R. §

8.1(d). The Board reviews questions of law de novo. United Gov’t Sec. Officers of

America, Loc. 114, ARB Nos. 02-012, -020, slip op. at 4–5 (ARB Sept. 29, 2003);

United Kleenist Org. Corp. & Young Park, ARB No. 00-042, ALJ No. 1999-SCA-018,

slip op. at 5 (ARB Jan. 25, 2002). We nonetheless defer to the Administrator’s

interpretation of the SCA when it is reasonable and consistent with law. See

Department of the Army, ARB Nos. 98-120,-122, slip op. at 15-16 (ARB Dec. 22,

1999).

When reviewing the Administrator rulings on wage determinations, the

Board “will act expeditiously, taking into consideration procurement deadlines. The

Board shall decide the case upon the basis of all relevant matters contained in the

entire record before it and shall not consider any data not submitted to the Wage–

Hour Administrator with the request for reconsideration. The Board in its decision

affirming, modifying, or setting aside the wage determination, shall include a

statement of reasons or bases for the actions taken.” 29 C.F.R. § 8.6(e). In review of

final determinations other than wage determinations, the Board is authorized to

modify or set aside the Administrator’s findings of fact only where they are not

supported by a preponderance of the evidence. 29 C.F.R. § 8.9(b).

DISCUSSION

A. Statutory and Regulatory Framework

The SCA requires that whenever the United States enters into a contract in

excess of $2,500, the principal purpose of which is to provide services through the

use of employees in the United States, the contract must contain a provision that

specifies the minimum hourly wage rates that are payable to the various

classifications of service employees working under the contract. 41 U.S.C. §§ 6702,

6703; 29 C.F.R. § 4.6.

The SCA requires the Secretary of Labor to determine minimum wage and

fringe benefit rates for service employees employed on Federal service contracts.

These wage and fringe benefit rates are predetermined by the Wage and Hour

Division acting under the authority of the Administrator, who has been designated

by the Secretary of Labor to administer the Act. The Administrator specifies the

minimum monetary wages and fringe benefits to be paid under the Act in two types

of determinations. The first type is set by the minimum monetary and fringe

benefits determined to be prevailing in the locality. 29 C.F.R. § 4.3, subpart B. The

Administrator bases these wage determinations on wage data, including area

surveys compiled by the Department’s Bureau of Labor Statistics (BLS). 29 C.F.R.

§ 4.51. A second type of wage determination is issued at locations when there is a

Collective Bargaining Unit (CBA) between the service employees and an employer

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working on a federal service contract.

B. We Deny MLB’s Motion for Reconsideration Concerning the Wage

Determination of Shuttle Bus Drivers

Interested parties affected by wage determinations may request review and

reconsideration by the Administrator. 29 C.F.R. §§ 4.56(a)(1), (2). The

Administrator’s final determination is subject to review by this Board. 29 C.F.R. §

4.56(b); 29 C.F.R. Part 8. With some exceptions, the Board will not review a

petition that is filed after a contract award or option year start date. 2 If a party

files a petition with the ARB for review of a wage determination prior to contract

award, exercise of option or extension, the Board may review the wage

determination after the award, exercise of option or extension “if the issue is a

significant issue of general applicability.” 29 C.F.R. § 8.6(d). However, retroactive

modification affecting wage determination rates for contemporaneous contract

periods is not available. 29 C.F.R. § 8.6(d) (“The Board's decision shall not affect the

contract after such award, exercise of option, or extension.”); D.B. Clark III, ARB

No. 98-106, slip op. at 9-10 (ARB Sept. 8, 1998).

The record shows that MLB filed the Petition for Review with the Board on

July 7, 2016. The contracts at issue began in 2009 with option years and extensions

extending into 2015. 3 MLB did not file its Petition for Review prior to any “award,

exercise of option, or extension of a contract” on any of these service contracts. The

ARB’s July 23, 2019 Order correctly determined that under 29 C.F.R. §§ 8.6(b), (d),

MLB’s petition is untimely. Accordingly MLB’s motion for reconsideration

pertaining to the ARB’s review of the wage for shuttle bus drivers in WD05-2133 is

DENIED.

2

Regulations 29 C.F.R. §§ 8.6(b),(d) provide the following:

(b) Except as provided in paragraphs (c) and (d) of this section, the Board will not

review a wage determination after award, exercise of option, or extension of a

contract, unless such procurement action was taken without the wage

determination required pursuant to §§ 4.4 and 4.5 of part 4 of this title. . .

(d) Where a petition for review of a wage determination is filed prior to

award, exercise of option, or extension of a contract, the Board may review

the wage determination after such award, exercise of option, or extension of

a contract if the issue is a significant issue of general applicability. The

Board’s decision shall not affect the contract after such award, exercise of

option, or extension.

June 17, 2016 Admin. Determ. at 7. The Administrator notes that there is a gap in

data for some of the contracts in question. Id. at 3 n.1; see also Statement of the

Administrator in Response to the Petition for Review at 11 n.5.

3

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C. We Grant MLB’s Motion for Reconsideration Concerning the

Classification of NEMT Drivers

The MLB also petitioned the ARB to review the Administrator’s final

determination of the reclassification matter. MLB’s petition of this matter arises

under a different subsection of 29 C.F.R. Part 8. Regulation 29 C.F.R. § 8.7

provides that an aggrieved party may petition the ARB to review final

determinations of the Administrator on rulings other than wage determinations

within 60 days of the Administrator’s rulings. § 8.7(b). The Administrator issued

its final determination denying MLB’s motion for reclassification and conformance

on June 17, 2016. MLB’s July 7, 2016 Petition for Review is timely. Accordingly,

the ARB GRANTS MLB’s Motion to Reconsider its denial of MLB’s Petition for

Review on this matter.

D. We Affirm the Administrator’s Decision Denying Reclassification

Answering MLB’s challenge, the Branch declined to reclassify drivers or add

a new classification for WD05-2133 on the grounds that reclassifications and

conformances are appropriate where the work the employee performs does not fall

within the scope of any existing classification listed in the WD. June 17, 2016

Admin. Determ. at 2. The Branch found that the duties of NEMT drivers fit within

several existing classifications. The Branch noted that the NEMT drivers need not

perform all of the duties described in an occupational classification in order for the

existing classification to apply to them. Id.

On December 9, 2014, MLB requested that the Administrator review and

reconsider the Branch’s decision. Citing relevant case law and 29 C.F.R. §

4.6(b)(2)(i), the Administrator determined that NEMT drivers were properly

classified as shuttle bus drivers based on the SCA Directory of Occupations. Id. at

5. NEMT drivers’ duties include providing wheelchair van and sedan services for

VA beneficiaries to the Atlanta Veterans Administration Medical Center in

Decatur, Georgia, as well as transportation to other treatment clinics. The contract

required that vehicles have several specific safety features including tie-down

straps and shoulder harnesses. The Administrator compared the description in the

contract with the descriptions for shuttle drivers and taxi drivers from the SCA

Directory and concluded that the “shuttle bus driver classification is most

appropriate for the duties performed under this contract.” Id. at 6. The

Administrator continued “[a]lthough several of the drivers’ duties may be viewed as

encompassed in both of the relevant classifications, the contract also identifies

multiple driver duties that are not encompassed within the taxi driver

classification, some of which are referenced in the shuttle bus driver classification.

These include securing wheelchairs in the vehicle, assisting disabled passengers,

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informing the VA travel clerk when a beneficiary is delivered to the medical center,

and assisting a disabled passenger into the airport.” Id. The Administrator

distinguished the duties of the taxi driver classification in some respects. Because

“an existing classification merely needs to be a reasonable fit based on the actual job

duties performed,” the Administrator declined MLB’s request for reconsideration to

reclassify or conform the drivers as taxi drivers. Id., citing 4.152(b); Andrew Aiken,

ARB No. 08-009.

On appeal, MLB reiterates the arguments that it made to the Administrator.

MLB claims that the vans are not like shuttle buses because they do not require

commercial licenses. MLB distinguishes the duties of shuttle drivers because the

NEMT drivers do not drive a large number of individuals from a staging area to the

hospital but rather, like taxis, transport individuals from personal residences to the

facility.

Having reviewed MLB’s filings and the Administrator’s decision, we

summarily affirm the Administrator’s final determination denying MLB’s

reclassification request. The Administrator’s determination that NEMT drivers’

duties overlaps with that of Shuttle Bus Driver is reasonable. 4 The Administrator’s

wage rate decisions will be reversed “only if inconsistent with the regulations, or if

they are ‘unreasonable in some sense, or . . . exhibit[] an unexplained departure

The SCA’s Directory of Occupations provides the following description for Shuttle

Bus Driver and Taxi Driver:

4

31290 SHUTTLE BUS DRIVER (Van Driver)

The Shuttle Bus Driver (Van Driver) drives minibus or van to transport clients,

trainees, or company personnel; drives vehicle from individual or central loading

area to social services or rehabilitation center, training location, job site, or other

destination according to assigned schedule. This driver may assist disabled

passengers into and out of vehicle, secure passengers' wheelchairs to restraining

devices to stabilize wheelchairs during trip; may operate radio or similar device to

communicate with base station or other vehicles to report disruption of service,

clean and/or service vehicle with fuel, lubricants, and accessories, keep records of

trips and/or behavior of passengers, and perform other duties when not driving

such as, custodial and building maintenance tasks.

31310 TAXI DRIVER

The Taxi Driver drives motor vehicle, with or without a taximeter, to transport

passengers for a fee, picks up passengers while cruising streets or in response to

radio or telephone relayed request for service, collects fee recorded on taximeter or

based on mileage or time factor, records transaction on log, and reports by radio or

telephone to central location on completion of trip.

June 17, 2016 Admin. Determ. at 5.

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from past determinations . . . .’” Environmental Chem. Corp., ARB No. 96-113, slip

op. at 3 (ARB Feb. 6, 1998) (quoting Titan IV Mobile Serv. Tower, WAB No. 98-14

(May 10, 1991); see also see also In re COBRO Corp., ARB No. 97-104, slip op. at 10

(ARB July 30, 1999). When reviewing the Administrator’s determination in a

reclassification or conformance action, we must focus on the Administrator’s choice

and the rationale advanced to support it. Comparing the duties listed with those in

shuttle driver, we cannot conclude that the Administrator erred in refusing to

reclassify NEMT drivers as taxi drivers. Cf. Andrew Aiken, ARB No. 08-009, slip

op. at 8 (“the conformance process does not require the exactitude that might be

achieved in a de novo determination of prevailing wage rates.”).

CONCLUSION

Accordingly, we DENY MLB’s Motion for Reconsideration in part, GRANT

the Motion in part and AFFIRM the Administrator’s denial of MLB’s request to

reclassify NEMT drivers as taxi drivers.

SO ORDERED.

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