B-164338, JULY 18, 1968, 48 COMP. GEN. 22

B-164338: Jul 18, 1968

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ALTHOUGH WAGE RATE DETERMINATIONS ARE NOT REVIEWABLE BY THE UNITED STATES GENERAL ACCOUNTING OFFICE OR THE COURTS. WHO IS REQUIRED TO COMPLY WITH A WAGE RATE DETERMINATION. II) THAT EXCEEDS THE RATES PAYABLE UNDER A UNION AGREEMENT IS NOT ENTITLED TO REVIEW OF THE WAGE DETERMINATION. IS IRREMEDIABLE. 1968: REFERENCE IS MADE TO YOUR LETTER OF MAY 13. IT APPEARS THAT YOU ARE A STAR ROUTE CARRIER ENGAGED IN THE TRANSPORTATION OF UNITED STATES MAIL PURSUANT TO CONTRACTS WITH THE POST OFFICE DEPARTMENT. YOUR ATTORNEY SAYS THAT YOU HAVE A COLLECTIVE BARGAINING AGREEMENT WITH LOCAL NO. 348 OF THE INTERNATIONAL BROTHERHOOD OF TEAMSTERS. THAT YOU HAVE CONDUCTED NEGOTIATIONS AND ENTERED INTO CONTRACTS WITH THE UNION SINCE 1961.

B-164338, JULY 18, 1968, 48 COMP. GEN. 22

CONTRACTS - LABOR STIPULATIONS - SERVICE CONTRACT ACT OF 1965 - MINIMUM WAGE, ETC., DETERMINATIONS - UNION AGREEMENT EFFECT THE FACT THAT A CONTRACTOR MAY BE OBLIGATED UNDER A UNION AGREEMENT TO PAY HIGHER OR LOWER WAGE RATES THAN THOSE STIPULATED IN A GOVERNMENT CONTRACT AS MINIMUM RATES PURSUANT TO A WAGE RATE DETERMINATION BY THE ADMINISTRATOR OF THE WAGE AND HOUR AND PUBLIC CONTRACTS DIVISIONS OF THE DEPARTMENT OF LABOR UNDER THE SERVICE CONTRACT ACT OF 1965, 41 U.S.C. 351- 357 (SUPP. II), DOES NOT AFFECT EITHER THE VALIDITY OF THE RATES ESTABLISHED BY THE CONTRACT OR THE CONTRACTOR'S DUTY TO COMPLY WITH THE WAGE RATE DETERMINATION IN THE PERFORMANCE OF THE CONTRACT. ALTHOUGH WAGE RATE DETERMINATIONS ARE NOT REVIEWABLE BY THE UNITED STATES GENERAL ACCOUNTING OFFICE OR THE COURTS, INFORMATION OF PREVAILING LOCALITY RATES SHOULD BE SUBMITTED BY THE CONTRACTOR TO THE ADMINISTRATOR FOR HIS CONSIDERATION. POST OFFICE DEPARTMENT - STAR ROUTE CONTRACTS - WAGE DETERMINATIONS V UNION AGREEMENTS A STAR ROUTE CARRIER ENGAGED IN THE TRANSPORTATION OF UNITED STATES MAIL PURSUANT TO CONTRACTS WITH THE POST OFFICE DEPARTMENT, WHO IS REQUIRED TO COMPLY WITH A WAGE RATE DETERMINATION, ISSUED BY THE ADMINISTRATOR, WAGE AND HOUR AND PUBLIC CONTRACTS DIVISIONS OF THE DEPARTMENT OF LABOR PURSUANT TO THE SERVICE CONTRACT ACT OF 1965, 41 U.S.C. 351-357 (SUPP. II) THAT EXCEEDS THE RATES PAYABLE UNDER A UNION AGREEMENT IS NOT ENTITLED TO REVIEW OF THE WAGE DETERMINATION. THE SERVICE CONTRACT ACT DOES NOT PROVIDE FOR REVIEW BY THE UNITED STATES GENERAL ACCOUNTING OFFICE OR THE COURTS, AND IN THE ABSENCE OF A STATUTE SO PROVIDING, DAMAGE RESULTING FROM A WAGE DETERMINATION MADE PURSUANT TO A LAW, SUCH AS THE SERVICE CONTRACT ACT, WHICH DOES NOT INVADE ANY RECOGNIZED LEGAL RIGHT, IS IRREMEDIABLE.

TO THE C.F. WAITE, INC., JULY 18, 1968:

REFERENCE IS MADE TO YOUR LETTER OF MAY 13, 1968, PROTESTING AGAINST WAGE RATE DETERMINATION NO. 68-233 ISSUED APRIL 11, 1968, BY THE ADMINISTRATOR, WAGE AND HOUR AND PUBLIC CONTRACTS DIVISIONS OF THE DEPARTMENT OF LABOR PURSUANT TO THE SERVICE CONTRACT ACT OF 1965, 41 U.S.C. 351 ET SEQ. (SUPP. II).

IT APPEARS THAT YOU ARE A STAR ROUTE CARRIER ENGAGED IN THE TRANSPORTATION OF UNITED STATES MAIL PURSUANT TO CONTRACTS WITH THE POST OFFICE DEPARTMENT. YOUR ATTORNEY SAYS THAT YOU HAVE A COLLECTIVE BARGAINING AGREEMENT WITH LOCAL NO. 348 OF THE INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA; THAT THIS UNION HAS BEEN CERTIFIED AS THE EXCLUSIVE BARGAINING AGENT BY THE NATIONAL LABOR RELATIONS BOARD; THAT YOU HAVE CONDUCTED NEGOTIATIONS AND ENTERED INTO CONTRACTS WITH THE UNION SINCE 1961; AND THAT YOUR UNION CONTRACT COVERS WAGES AS WELL AS FRINGE BENEFITS INCLUDED IN THE ADMINISTRATOR'S DETERMINATION.

YOUR ATTORNEY COMPLAINS THAT THE ADMINISTRATOR'S DETERMINATION, WHICH SETS FORTH HOURLY WAGES EXCEEDING THE RATE REQUIRED BY THE UNION AGREEMENT, IS SUPERIMPOSED ON THE UNION CONTRACT AND RENDERS MEANINGLESS THE CONSIDERABLE TIME, EFFORT, AND FUNDS INVESTED IN NEGOTIATING THE UNION CONTRACT. HE FURTHER STATES THAT YOU ARE THUS PLACED IN AN ANOMALOUS POSITION IN THAT IF THE WAGE REQUIREMENTS OR FRINGE BENEFITS ARE GREATER THAN THE REQUIREMENTS OF THE UNION CONTRACT, YOU MUST COMPLY WITH THE GOVERNMENT'S WAGE RATE DETERMINATION AND THAT IF THE WAGE DETERMINATION AND FRINGE BENEFITS ARE LESS, THEN YOU MUST COMPLY WITH THE UNION CONTRACT; AND THAT IT IS YOUR FEELING THAT THE ADMINISTRATOR'S ACTION UNDER THE ACT IS DISCRIMINATORY WHEN IT CONTRAVENES THE TERMS OF THE UNION AGREEMENT NEGOTIATED IN GOOD FAITH BY ALL PARTIES.

UNDER THE CIRCUMSTANCES, YOU WISH TO REGISTER YOUR PROTEST TO SUCH WAGE DETERMINATIONS INSOFAR AS THEY PERTAIN TO EMPLOYERS WITH EXISTING COLLECTIVE BARGAINING CONTRACTS COVERING IDENTICAL SUBJECT MATTER.

THE SERVICE CONTRACT ACT PROVIDES THAT, WITH CERTAIN EXCEPTIONS, EVERY CONTRACT ENTERED INTO BY THE UNITED STATES IN EXCESS OF $2,500, THE PRINCIPAL PURPOSE OF WHICH IS TO FURNISH SERVICES IN THE UNITED STATES THROUGH THE USE OF SERVICE EMPLOYEES, SHALL CONTAIN PROVISIONS SPECIFYING THE MINIMUM MONETARY WAGES AND FRINGE BENEFITS TO BE PAID THE VARIOUS CLASSES OF SERVICE EMPLOYEES IN THE PERFORMANCE OF THE CONTRACT, AS DETERMINED BY THE SECRETARY OF LABOR OR HIS AUTHORIZED REPRESENTATIVE, IN ACCORDANCE WITH PREVAILING RATES FOR SUCH EMPLOYEES IN THE LOCALITY. SECRETARY'S ORDER NO. 36-65 THE SECRETARY OF LABOR DELEGATED TO THE ADMINISTRATOR OF THE WAGE AND HOUR AND PUBLIC CONTRACTS DIVISIONS THE AUTHORITY TO DETERMINE MINIMUM WAGES AND FRINGE BENEFITS THEREUNDER.

THE ISSUANCE OF A WAGE RATE DETERMINATION CONSTITUTES A FINDING THAT THE RATES SPECIFIED THEREIN ARE THE RATES PREVAILING IN THE LOCALITY, AND THE INCLUSION THEREOF IN AN INVITATION FOR BIDS OR A CONTRACT DOES NOT CONSTITUTE A REPRESENTATION BY THE GOVERNMENT THAT LABOR CAN BE OBTAINED BY THE CONTRACTOR AT SUCH RATES. SEE UNITED STATES V BINGHAMTON CONSTRUCTION CO., 347 U.S. 171. THE FACT THAT A PARTICULAR CONTRACTOR MAY BE OBLIGATED BY AN INDEPENDENT AGREEMENT TO PAY HIGHER OR LOWER WAGE RATES THAN THOSE STIPULATED IN A GOVERNMENT CONTRACT AS MINIMUM RATES, PURSUANT TO STATUTE, DOES NOT AFFECT EITHER THE VALIDITY OF THE RATES ESTABLISHED BY THE CONTRACT OR THE CONTRACTOR'S DUTY TO COMPLY THEREWITH IN THE PERFORMANCE OF THE CONTRACT.

IN ANY EVENT, THE SERVICE CONTRACT ACT DOES NOT PROVIDE FOR REVIEW OF WAGE RATE DETERMINATIONS EITHER BY THE GENERAL ACCOUNTING OFFICE OR THE COURTS, AND IN THE ABSENCE OF A STATUTE, DAMAGE RESULTING FROM A WAGE RATE DETERMINATION MADE PURSUANT TO A LAW, SUCH AS THE SERVICE CONTRACT ACT, WHICH DOES NOT INVADE ANY RECOGNIZED LEGAL RIGHT IS IRREMEDIABLE. SEE PERKINS V LUKENS STEEL CO., 310 U.S. 113.

THEREFORE, WE ARE REQUIRED TO DENY YOUR PROTEST. WE SUGGEST, HOWEVER, IF YOU HAVE NOT ALREADY DONE SO, THAT YOU PRESENT YOUR VIEWS ON THE MATTER TO THE ADMINISTRATOR OF THE WAGE AND HOUR AND PUBLIC CONTRACTS DIVISIONS OF THE DEPARTMENT OF LABOR FOR HIS CONSIDERATION, WITH SUCH INFORMATION AS YOU MAY BE ABLE TO OFFER WITH RESPECT TO THE RATES WHICH YOU BELIEVE TO BE PREVAILING FOR WORK OF THE NATURE INVOLVED IN YOUR LOCALITY.