[Federal Register Volume 59, Number 202 (Thursday, October 20, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-26000]
[[Page Unknown]]
[Federal Register: October 20, 1994]
-----------------------------------------------------------------------
DEPARTMENT OF LABOR
Office of Federal Contract Compliance Programs
State Construction of SE Wisconsin, Debarment
AGENCY: Office of Federal Contract Compliance Programs, Labor.
ACTION: Notice of Debarment, State Construction of SE Wisconsin,
Kenosha, Wisconsin.
-----------------------------------------------------------------------
SUMMARY: This notice advises of the debarment of State Construction of
SE Wisconsin, (hereinafter ``State''), as an eligible bidder on
Government contracts and subcontracts and federally assisted
construction contracts and subcontracts. The debarment is effective
immediately.
FOR FURTHER INFORMATION CONTACT: Robert Gelerter, Acting Director
Program Policy, Office of Federal Contract Compliance Programs, U.S.
Department of Labor, 200 Constitution Ave., N.W., Room C-3325,
Washington, D.C. 20210 (202-219-9430).
SUPPLEMENTARY INFORMATION: Pursuant to 41 CFR 60-30.32(c), the
Administrative Law Judge issued an Order Granting Plaintiff's Motion
for a Default Judgment and Entry of Sanctions: (1) Finding State in
violation of Executive Orders No. 11246, 11375 and 12086; (2)
cancelling all Federal contracts and subcontracts and all federally
assisted construction contracts and subcontracts of State, of its
officers, agents, servants, employees, successors, divisions or
subsidiaries, and those persons in active concert or participation with
them who receive actual notice of the order by personal service or
otherwise; declaring State ineligible for extensions or other
modifications of any existing Government contracts or subcontracts; and
declaring State and its officers, agents, servants, employees,
successors, divisions or subsidiaries, and those persons in active
concert or participation with them who receive actual notice of the
order by personal service or otherwise ineligible for the award of any
Government contracts or subcontracts and all federally assisted
contracts and subcontracts, for a period of at least 180 days and
thereafter, until States demonstrates to the Deputy Assistant Secretary
for Federal Contract Compliance Programs that it is currently in
compliance with the provisions of Executive Orders No. 11246, 11375 and
12086 and the regulations promulgated thereunder, and that it has
undertaken to correct past acts of noncompliance, including identifying
and making whole any victims of its noncompliance, and that it will
carry out employment practices in compliance with the Executive Orders
No. 11246, 11375 and 12086. A copy of the Order is attached.
Signed October 13, 1994, Washington, DC.
Shirley J. Wilcher,
Deputy Assistant Secretary For Federal Contract Compliance Programs.
Order Granting Plaintiff's Motion To Alter or Amend Recommended
Decision and Order
In the matter of United States Department of Labor, Office of
Federal Contract Compliance Programs, Plaintiff v. United States
Construction of SE Wisconsin, Defendant, 94-OFC-18.
Dated: September 8, 1994.
It appearing that by document styled ``Recommended Decision and
Order'' entered in the above-captioned proceeding on August 31, 1994,
all of the relief sought in the Plaintiff's Motion for a Default
Judgment and Entry of Sanctions, filed August 29, 1994, was granted.
It further appearing that, pursuant to the appropriate regulations
at 41 C.F.R. 46-30.32(c), where, as here, the defendant in a proceeding
instituted by the OFCCP has failed to timely answer the complaint and
request a hearing within 20 days of service of the complaint, the
administrative law judge shall, in a final administrative order, adopt
as findings of fact the material facts alleged in the complaint, and
shall order the appropriate sanctions and/or penalties sought in the
complaint.
And it further appearing that, in light of the mandatory language
of the regulations, the entry of a recommended decision and order was
inappropriate and the plaintiff's timely-filed motion to alter or amend
the document properly lies.
Wherefore, for good cause shown,
Order
It is ordered, That the order entered August 31, 1994 in the above-
captioned proceeding by, and it is hereby, amended by deleting from the
first page thereof the heading ``Recommended Decision and Order'', and
substituting in lieu thereof, the following:
Order Granting Plaintiff's Motion for a Default Judgment and for Entry
of Sanctions
It is further ordered, That page 3 of the said order of August 31,
1994, be deleted and that the appended page 3 be substituted in lieu
thereof.
And it is further ordered, That, in all other respects, the order
of August 31, 1994, remain in full force and effect.
George P. Morin,
Administrative Law Judge.
slip. op. at 3, wherein the Secretary affirmed the administrative law
judge's entry of an order imposing sanctions in a situation similar in
all respects to that in the instant case. Furthermore, sanctions are
appropriate where, as here, a contractor has failed to abide by the
terms of a conciliation agreement and is in violation of the Executive
Order.
Accordingly, it is ordered, That:
1. All federal and federally assisted contracts and subcontracts of
State Construction of SE Wisconsin, its officers, agents, successors
and assigns, are immediately cancelled.
2. State Construction of SE Wisconsin, its officers, agents,
successors and assigns are declared ineligible to receive any federal
contracts or subcontracts or for extensions or other modifications of
any existing Government contracts or subcontracts for a period of 180
days, and thereafter until State Construction of SE Wisconsin has
demonstrated to the Deputy Assistant Secretary for Federal Contract
Compliance Programs that it is currently in compliance with the
provisions of Executive Orders Nos. 11246, 11375 and 12086 and the
regulations promulgated thereunder, and that it has undertaken to
correct past acts of noncompliance, including identifying and making
whole any victims of its past noncompliance, and that it will carry out
employment practices in compliance with Executive Orders Nos. 11246,
11375 and 12086.
George P. Morin,
Administrative Law Judge.
Service Sheet
Case Name: State Construction of SE Wisconsin.
Case Number: 94-OFC-18.
Title of Document: Order Granting Plaintiff's Motion to Alter or
Amend Recommended Decision and Order.
I hereby certify that on September 8, 1994, a copy of the above-
entitled document was mailed to the following parties:
Laura Ann Brown,
Legal Technician.
Certified Mail
Roscoe C. Bryant, III, Esq., Debra A. Millenson, Esq., Office of the
Solicitor, US DOL, Room N-2464, FPB, 200 Constitution Avenue, NW,
Washington, DC 20210
Donald Pfarr, Jr., President, State Construction of SE Wisconsin, 4237
Green Bay Road, Kenosha, WI 53144
Director, Office of Administrative Appeals, Department of Labor, Room
S-4309, FPB, 200 Constitution Avenue, NW, Washington, DC 20210
Regular Mail
Solicitor of Labor, Office of the Solicitor, US DOL, Room S-2002, FPB,
200 Constitution Avenue, NW, Washington, DC 20210
Special Counsel to the Assistant Secretary of Labor, US DOL, ESA, Room
N-4671, 200 Constitution Avenue, NW, Washington, DC 20210
Regular Mail
Office of Federal Contract Compliance Programs, US DOL, Room C-3325,
FPB, 200 Constitution Avenue, NW, Washington, DC 20210
Associate Solicitor, Civil Rights Division, U.S. DOL, Room N-2464, FPB,
200 Constitution Avenue, NW, Washington, DC 20210
John H. Secaras, Regional Solicitor, US DOL, Office of the Solicitor,
8th Floor, 230 South Dearborn, Chicago, IL 60604
Halcolm Holliman, Regional Director, US DOL, ESA, OFCCP, Region V, Room
570, 230 South Dearborn Street, Chicago, IL 60604
Date: August 31, 1994.
[Case No. 94-OFC-18]
Recommended Decision and Order
In the Matter of United States Department of Labor, Office of
Federal Contract Compliance Programs, Plaintiff v. State
Construction of SE Wisconsin, Defendant.
This proceeding was initiated to enforce the contractual
obligations imposed by Executive order 11246 (30 FR 12319), as amended
by Executive Order No. 11375 (32 FR 14303) and Executive Order 12086
(43 FR 46501), hereinafter, ``Executive Order 11246.''
On August 1, 1994, plaintiff, the Office of Federal Contract
Compliance Programs, U.S. Department of Labor (hereinafter, ``OFCCP''),
filed a complaint in this matter with the Office of Administrative Law
Judges against defendant, State Construction of SE Wisconsin
(hereinafter ``State''), alleging violations of Executive Order 11246.
Simultaneously with the filing of the complaint, OFCCP filed a Request
for Admissions. The complaint and request for admissions were sent via
Federal Express, which effected delivery on August 2, 1994. The
complaint alleges that State, a construction contractor maintaining its
principal place of business in Kenosha, Wisconsin, at all times
pertinent hereto has held a Federal or Federally-assisted construction
contract of $10,000 or more, within the meaning of the Executive Order,
and has been subject to the contractual obligations imposed on
Government contractors and subcontractors by the said Executive Order
and the implementing regulations issued thereunder.
Following a compliance review of State, commenced by OFCCP on
February 18, 1992, OFCCP, on February 27, 1992, issued to State a
Notice of Violation, finding that State had violated its affirmative
obligations in thirteen specific respects and was not in compliance
with Executive Order 11246. As a result of said violations, the parties
entered into a Conciliation Agreement on March 10, 1992 in which State
agreed to provide OFCCP with personnel activity reports at six-month
intervals, said reports to include information for the relevant six-
month period on the number of vacancies for each craft, the number of
contacts State has with linkage and recruitment resources to fill those
vacancies, the number of applications received by State from each of
its recruitment sources, the number of hires, and the total number of
applicants and hires by race, sex and ethnicity.
The first personnel activity summary report was due to be filed
with OFCCP on August 1, 1992, to cover the period from January 1,
through June 30, 1992, but was filed, untimely, on August 26, 1992.
State was notified of deficiencies in the report in an October 16, 1992
letter to which it responded on November 11, 1992, indicating it had
hired 14 trade employees during the reporting period, and that the 14
hires included two women and one Hispanic. State did not notify the
Milwaukee Urban League, Big Step, Inc., Spanish Center of Racine &
Kenosha, the Urban League of Racine & Kenosha, Inc., Women's Resource
Center and Cartage College of these 14 openings and did not request
that these sources supply applicants for any of these positions, in
violation of an agreed-to term of the Conciliation Agreement. Also,
computer and other records produced by State in response to the October
16, 1992 letter failed to support State's supplemental report that it
had 14 trade hires, including two women one Hispanic.
On December 11, 1992, OFCCP notified State, by letter, that the
November 11, 1992 response was unacceptable and requested further
clarification and information. OFCCP agreed to State's request that
State be permitted to file the clarifying information with its second
activity report which was due February 1, 1993, but that report was
never filed. This failure to file the second personnel activity report,
the incompleteness of the first personnel activity report, the failure
to notify of openings and its failure to recruit and employ minorities
and women during the period from January 1 through June 30, 1992, all
in violation of the Conciliation Agreement were appointed out to State
on February 19, 1993.
On July 29, 1993, OFCCP notified State of its determination that
the company had violated its obligations under the Conciliation
Agreement and gave State 15 days in which to respond. No response has
been received. As of the present date, State has failed to file an
answer to the complaint or admissions as requested.
On August 29, 1994, OFCCP filed a Motion for a Default Judgment and
Entry of Sanctions. The Plaintiff cites the regulations at 41 CFR 60-
30.32(c), governing Executive Order 11246, stating that if a defendant
fails to request a hearing within 20 days of the filing of the
complaint such failure shall constitute waiver of hearing and all
material allegations of fact shall be deemed to be admitted.
Furthermore, if a party fails to respond within 25 days to request for
admissions, the matters of fact stated in the request shall be deemed
admitted. 41 CFR 60-30.9(b) Plaintiff cites OFCCP v. Milwaukee Fence,
91-OFC-3, slip. op. at 3, wherein the Secretary affirmed the
administrative law judge's entry of an order imposing sanctions in a
situation similar in all respects to that in the instant case.
Furthermore, sanctions are appropriate where, as here, a contractor has
failed to abide by the terms of a conciliation agreement and is in
violation of the Executive Order. Accordingly, I recommend that the
Secretary enter a Final Order providing for the following relief:
1. Cancelling all of the federal and federally assisted contracts
and subcontracts of Defendant, its successors, officers, agents,
servants, employees, direct or beneficial owners, division or
subdivisions and those persons in active concert or participation with
them; and
2. Declaring Defendant, its officers, agents, subsidiaries and
successors to be ineligible to receive any government contracts or
subcontracts or for extensions or other modifications of any existing
Government contracts or subcontracts, for a period of at least 180
days, and thereafter until State has demonstrated to the Deputy
Assistant Secretary for Federal Contract Compliance Programs that it is
currently in compliance with the provisions of the Executive Order and
the regulations promulgated thereunder, and that it has undertaken to
correct past acts of noncompliance, including identifying and making
whole any victims of its past noncompliance, and that it will carry out
employment practices in compliance with the Executive Order.
George P. Morin,
Administrative Law Judge.
Notice: This Recommended Decision and Order and the administrative
file in this matter will be forwarded for review by the Secretary of
Labor to the Office of Administrative Appeals (OAA), U.S. Department of
Labor, Room S-4309, Frances Perkins Building, 200 Constitution Avenue,
NW, Washington, DC 20210. The OAA has the responsibility to advise and
assist the Secretary in the preparation and issuance of final decisions
in cases adjudicated under the regulations at 41 CFR part 60. Pursuant
to Sec. 60-30.36, ``within ten days after receipt of the recommended
findings, conclusions and decision, any party may submit exceptions to
said recommendations. Exceptions may be responded to by other parties
within seven days after receipt by said parties of the exceptions. All
exceptions and responses shall be filed with the Secretary. Briefs or
exceptions and responses shall be filed with the Secretary. Briefs or
exceptions and responses shall be served simultaneously on all parties
to the proceeding.''
Service Sheet
Case Name: State Construction of SE Wisconsin.
Case Number: 94-OFC-18.
Title of Document: Recommended Decision and Order.
I hereby certify that on August 31, 1994, a copy of the above-
entitled document was mailed to the following parties:
Laura Ann Brown,
Legal Technician.
Certified Mail
Roscoe C. Bryant, III, Esq., Debra A. Millenson, Esq, Office of the
Solicitor, US DOL, Room N-2464, FPB, 200 Constitution Avenue, NW,
Washington, DC 20210
Donald Pfarr, Jr., President, State Construction of SE Wisconsin, 4237
Green Bay Road, Kenosha, WI 53144
Regular Mail
Director, Office of Administrative Appeals, US DOL, Room S-4309, FPB,
200 Constitution Avenue, NW, Washington, DC 20210
Solicitor of Labor, Office of the Solicitor, US DOL, Room S-2002, FPB,
200 Constitution Avenue, NW, Washington, DC 20210
Special Counsel to the Assistant Secretary of Labor, US DOL, ESA, Room
N-4671, 200 Constitution Avenue, NW, Washington, DC 20210
Regular Mail
Office of Federal Contract Compliance Programs, US DOL, Room C-3325,
FPB, 200 Constitution Avenue, NW, Washington, DC 20210
Associate Solicitor, Civil Rights Division, U.S. DOL, Room N-2464, FPB,
200 Constitution Avenue, NW, Washington, DC 20210
John H. Secaras, Regional Solicitor, US DOL, Office of the Solicitor,
8th Floor, 230 South Dearborn, Chicago, IL 60604
Halcolm Holliman, Regional Director, US DOL, ESA, OFCCP, Region V, Room
570, 230 South Dearborn Street, Chicago, IL 60604
United Parcel Service
Director, Office of Administrative Appeals, Department of Labor, Room
S-4309, FPB, 200 Constitution Avenue, NW, Washington, DC 20210
[FR Doc. 94-26000 Filed 10-19-94; 8:45 am]
BILLING CODE 4510-27-M
