Office of Federal Contract Compliance Programs, Labor
Notice of debarment: Giant Merchandising, 5655 Union Pacific Avenue, Los Angeles, California 90022.
This notice advises of the debarment of Giant Merchandising (hereinafter “Giant”), as an eligible bidder on Government contracts or extensions or modifications of existing contracts. The debarment is effective immediately.Start Further Info
FOR FURTHER INFORMATION CONTACT:
Harold M. Busch, Acting Deputy Assistant Secretary for Federal contract Compliance, U.S. Department of labor, 200 Constitution Ave., NW., Room C-3325, Washington, DC 20210 (202-693-1062).End Further Info End Preamble Start Supplemental Information
On April 19, 2001, pursuant to 41 CFR 60-30.13(a), Administrative Law Judge Karst issued a Decision and order approving the consent Decree entered into by Giant Merchandising, 5655 Union Pacific Avenue, Los Angeles, CA 90022 (“Giant”), and the United States Department of Labor, Office of Federal Contract Compliance Programs (OFCCP). Under the terms of the Consent Decree, Giant and any and all purchasers, successors, assignees, and/or transferees are declared ineligible for Start Printed Page 28558the award of any future contracts funded in whole or in part with Federal funds and ineligible for extension or other modifications of any existing Government contracts. The Decision and Order is set forth below. The debarment from future Government contracts and subcontracts and the ineligibility for extensions or other modifications is effective immediately and shall be lifted after a fixed term of six months from the date of the Decision and Order approving the Consent Decree, provided Giant complies with the terms of this Consent Decree.Start Signature
Dated: Signed May 17th, 2001, Washington, DC.
Harold M. Busch,
Acting Deputy Assistant Secretary for Federal Contract Compliance.
Department of Labor, Office of Administrative Law Judges, San Francisco, CAIssue date: April 19, 2001.
In the Matter of: Office of Federal Contract Compliance Programs, Department of Labor, Plaintiff, vs. Giant Merchandising, Defendant
Decision and Order Approving Consent Decree
The parties filed an executed Consent Decree, a copy of which is attached on April 17, 2001. Review of the Consent Decree shows that it is in compliance with 41 CFR 60-30.13 and that it fairly and adequately resolves all pending issues for this matter.
Accordingly, the Consent Decree is hereby Approved. Such Consent Decree constitutes my findings of fact and conclusions of law and constitutes full, final, and complete adjudication of this matter.
Administrative Law Judge.
A copy of the above named document was sent to the following:
Patricia Winkler, Human Resources Manager, Giant Merchandising, 5655 Union Pacific Avenue, Los Angeles, CA 90022
Matthew Halpern, Esq., Jackson Lewis Schnitzler & Krupman, 1000 Woodbury Road, Suite 402, Woodbury, NY 11797
Gerald M. Levin, Chairman & CEO, Time Warner, Inc., 75 Rockefeller Plaza, New York, NY 10019
Michelle Serrou, Office of the Solicitor-Div. of Civil Rights, U.S. Department of Labor, Room N-2464, 200 Constitution Ave., NW., Washington, DC 20210
Solicitor of Labor, U.S. Department of Labor, Office of the Solicitor, Room S-2002, FPB, 200 Constitution Ave., NW., Washington, DC 20210
Special Counsel to the Assistant Secretary of Labor, U.S. Department of Labor, Employment & Training Administration, 200 Constitution Ave., NW., Rm. N-4671, Washington, DC 20210
Offc of Fed. Contract Compliance Programs, U.S. Department of Labor, Room C-3325, 200 Constitution Ave., NW., Washington, DC 20210
Associate Solicitor-Civil Rights Division, U.S. Department of Labor, Room N-2464, 200 Constitution Ave., NW., Washington, DC 20210
Daniel Teehan, Regional Solicitor, U.S. Department of Labor, 71 Stevenson Street, Suite 1110, San Francisco, CA 94105
Office of Administrative Law Judges
Department of Labor, Office of Federal Contract Compliance Programs, Plaintiff, v. Giant Merchandising, Defendant
This Consent Decree is entered into between the Plaintiff, United States Department of Labor, Office of Federal Contract Compliance Programs (hereinafter “OFCCP”) and Defendant, Giant Merchandising (hereinafter “Giant”) in complete resolution of the Administrative Complaint filed in this matter. The Complaint was filed by OFCCP against Giant alleging violations of Executive Order 11246 (30 FR 12319), as amended by Executive Order 11375 (32 FR 14303) and Executive Order 12086 (43 FR 46501) (hereinafter “Executive Order”); Section 503 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. 793 (hereinafter “Section 503”); and the Vietnam Era Veterans' Readjustment Assistance Act of 1974, as amended, 38 U.S.C. 4212 (hereinafter “VEVRAA”).
In the Administrative Complaint, OFCCP alleged that Giant violated its contractual obligations under Executive Order 11246, section 503, and VEVRAA by failing to submit to OFCCP information requested in a survey document bearing OMB Control Number 1215-0196 (“the Equal Opportunity Survey” or “EO Survey”). The EO Survey requested information relating to personnel activity at Giant's facility located in Commerce, California (hereinafter “Commerce facility”).
In its Answer, Giant denied that the Company had violated the Executive Order, Section 503 and VEVRAA and asserted that the cited laws and/or regulations did not apply to the Defendant at the time that it was asked to respond to the EO Survey.
Part A—Jurisdiction and Procedural History
1. The Office of Administrative Law Judges has jurisdiction over this action pursuant to sections 208 and 209 of Executive Order 11246, 41 CFR 60-1.26, 41 CFR Part 60-30; section 503, 41 CFR 60-741.65; VEVRAA and 41 CFR 60-250.29.
2. This matter was brought by OFCCP to enforce the contractual obligations imposed by the Executive Order, section 503 and VEVRAA and the regulations issued pursuant thereto. The Administrative Complaint invoked the expedited OFCCP hearing procedures, 41 CFR 60-30.31, et seq.
3. In its Complaint, OFCCP alleged that Giant had refused to give OFCCP access to or to supply it with records or other information as required by the equal opportunity clause; specifically, it alleged that Giant had failed and refused to complete the EO Survey mailed to Giant by OFCCP and received by Giant on April 28, 2000. The EO Survey required Defendant to furnish to OFCCP, within 30 days from the date of receipt, certain information relating to personnel activity at the Commerce facility.
4. In its Answer, Giant contended that the Executive Order, section 503 and VEVRAA did not apply at the time that Giant was asked to respond to the EO Survey and, therefore, Giant had no obligation under the applicable laws and regulations to supply OFCCP with the information it had requested. Giant further denied that it was obligated to complete the EO Survey and averred that it submitted the EO Survey on January 31, 2000.
5. Giant denies that it violated Executive Order 11246, section 503 and VEVRAA.
6. Giant does not admit any violation of law or other obligation. The parties agree that this Consent Decree is not, and may not be used, as a admission of any violation by Giant, or as a basis for asserting Giant's noncompliance with any labor and employment laws, rules or regulations.
7. Giant is a joint venture between Warner Bros. Records Inc., and Warner Music GM Merchandising Inc., and is headquartered in Commerce, California. Giant is engaged in the business of manufacturing, printing, and distributing commercial art and graphic design in the form of silk-screened tee-shirts and other wearables.Start Printed Page 28559
8. At all times pertinent to this matter, OFCCP has alleged that Giant had a Government contract of $50,000 or more, and had 50 or more employees. Giant denied that it had a Government contract of $50,000 or more at the time OFCCP sought submission of the EO Survey.
9. At all times pertinent to this matter, Giant maintained and operated the Commerce facility located at 5655 Union Pacific Avenue, Commerce, California 90022.
10. Giant has never obtained a waiver of coverage from the Deputy Assistant Secretary for Federal contract Compliance for its Commerce Facility.
11. The EO Survey received by Giant, on April 28, 2000, sought from Giant information relating to its current personnel practices. This information is of the type that Federal contractors are required to maintain. 41 CFR 60-1.12; 41 CFR 60-250.52 41 CFR 60-740.80.
12. OFCCP contended, in this action, that Giant was required to respond to the EO Survey within 30 days from the date of receipt, i.e., on or before May 28, 2000. Giant denied that it was required to do so.
13. Giant did not complete the EO Survey for its Commerce facility by May 28, 2000.
14. By letter dated June 22, 2000, Shirley J. Wilcher, Deputy Assistant Secretary for Federal Contract Compliance, U.S. Department of Labor, sent, by certified mail a Notice to Show Cause within 30 days why Giant's non-submission of the EO Survey should not be deemed a violation of the Executive Order, and why defendant should not be subject to the sanctions provided by law and regulation for such a violation. The Notice to Show Cause was accompanied by a second copy of the EO survey.
15. On August 1, 2000, a letter dated May 22, 2000, was faxed to OFCCP by Patricia Winkler, Human Resources Manager for Giant. In the May 22, 2000 letter, Jesse L. Atilano, President and CEO of Labor Law, requested an exemption for Giant based on the assertion that Giant did not have sales exceeding the “statutory dollar amount” of $500,000.00. On August 16, 2000, OFCCP contacted Mr. Atilano to inform him that the threshold dollar amount which creates in Government contractors the duty to prepare and maintain a written Affirmative Action Program is $50,000. Mr. Atilano stated that he did not believe that Giant was a Federal contractor but that he needed to confirm the dollar amount of Giant's contracts.
16. On January 12, 2001, the Administrative Complaint was filed in this matter.
17. On January 31, 2001, Giant provided to OFCCP a complete response to the EO Survey at issue in this case.
Part B—General Provisions
18. The record that is the basis for this Consent Decree consists of the Administrative Complaint, Answer and the Consent Decree including attachments thereto.
19. This Consent Decree shall not become final until it has been signed by the Administrative Law Judge. The Effective Date of the Decree shall be the date on which it is signed by the Administrative Law Judge.
20. This Consent Decree shall be binding upon Giant, and any and all purchasers, successors, assignees, and/or transferees, and shall have the same force and effect as an order made after a full hearing.
21. The parties waive all further procedural steps to contest the binding effect of the Consent Decree, and any right to challenge or contest the obligations entered into pursuant to this Decree. Pursuant to 41 CFR 60-30.13, an Order by the Administrative Law Judge accepting this Consent Decree shall constitute the final administrative order in this matter.
22. Subject to the performance by Giant of all duties and obligations contained in this Consent Decree, all alleged violations identified or which could have been identified in the Administrative Complaint shall be deemed fully resolved. However, nothing herein is intended to relieve Giant form compliance with the requirements of the Executive Order, section 503 and VEVRAA or the regulations promulgated pursuant thereto, or to limit OFCCP's right to review Giant's compliance with such requirements.
23. Giant agrees that there shall be no retaliation of any kind against any person who has provided information or assistance concerning this Decree.
Part C—Specific Provisions
24. Giant agrees to a fixed-term debarment of six months during which Giant will not be eligible to receive future contracts or modifications or extensions of existing contracts. The six month debarment will commence on the Effective Date of this Decree. The Deputy Assistant Secretary will grant reinstatement, pursuant to 41 CFR 60-1.31, if Giant complies with the terms of this Decree. No additional proceedings before the Office of Administrative Law Judges are necessary for Giant to be reinstated.
Part D—Implementation and Enforcement of the Decree
25. Jurisdiction, including the authority to issue any additional orders or decrees necessary to effectuate the implantation of the provisions of this Consent Decree, is retained by the Office of Administrative Law Judges for one year form the Effective Date of this Decree.
26. If at any time after the Effective Date of this Decree, OFCCP believes that Giant has violated any portion of this Consent Decree, Giant will be promptly notified of that fact in writing. This notification will include a statement of the facts and circumstances relied upon in forming that belief. The notification will provide Giant with 15 calendar days to respond in writing except where OFCCP alleges that such a delay would result in irreparable injury.
27. Enforcement proceedings for violation of this Consent Decree may be initiated at any time after the 15 days referred to in paragraph 26 has elapsed (or sooner, if irreparable injury is alleged) upon filing with the Court a motion for an order of enforcement and/or sanctions. The issues in a hearing on the motion shall related solely to the factual and legal claims make in the motion and Giant's defense thereto.
28. Liability for violation of this Consent Decree shall subject Giant to sanctions set forth in the Executive Order, section 503 and VEVRAA and their implementing regulations, including contract cancellation and/or debarment, and the appropriate relief.
29. If an application or motion for an order of enforcement or clarification indicates by signature of counsel that the application or motion is unopposed by OFCCP and Giant, the application or motion may be presented to the Court without hearing and the proposed Order may be implemented immediately. If an application or motion is opposed by any party, the party in opposition shall file a written response within 20 calendar days of receipt. The Office of Administrative Law Judges may, if it deems it appropriate, schedule a hearing on the application or motion.
30. The Agreement herein set forth is hereby approved and shall constitute the Final Administrative Order in this case.
Agreed and Consented To:
On Behalf of the Defendant, Giant Merchandising:
Date: April 13, 2001.
Matthew B. Halpern,
Jackson, Lewis, Schnitzler & Krupman, 1000 Woodbury Road, Suite 402, Woodbury, NY 11797
On Behalf of the Plaintiff, U.S. Department of Labor, Office of Federal Contract Compliance Programs:Start Printed Page 28560
Judith E. Kramer,
Acting Solicitor of Labor.
Gary M. Buff, Associate Solicitor.
Debra A. Millenson,
Senior Trial Attorney.
Attorney, Department of Labor, Office of the Solicitor, Civil Rights Division.End Supplemental Information
[FR Doc. 01-12995 Filed 5-22-01; 8:45 am]
BILLING CODE 4510-27-M