USDOL/OALJ Reporter
Notice of Debarment (Giant Merchandising), 66 Fed. Reg. 28557 (May 23, 2001)
[Federal Register: May 23, 2001 (Volume 66, Number 100)]
[Notices]
[Page 28557-28560]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr23my01-162]
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DEPARTMENT OF LABOR
Office of Federal Contract Compliance Programs
Giant Merchandising Debarment
AGENCY: Office of Federal Contract Compliance Programs, Labor
ACTION: Notice of debarment: Giant Merchandising, 5655 Union Pacific
Avenue, Los Angeles, California 90022.
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SUMMARY: 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.
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).
SUPPLEMENTARY 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
[[Page 28558]]
the 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.
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, CA
[Case No. 2001-OFC-2]
Issue 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.
Alexander Karst,
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
atthew 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
ichelle 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
Vivian Chan,
Legal Technician.
Office of Administrative Law Judges
Department of Labor, Office of Federal Contract Compliance Programs,
Plaintiff, v. Giant Merchandising, Defendant
[Case No. 01-OFC-2]
Consent Decree
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.
[[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
ay 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.
atthew 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:
[[Page 28560]]
Judith E. Kramer,
Acting Solicitor of Labor.
Gary M. Buff, Associate Solicitor.
Debra A. Millenson,
Senior Trial Attorney.
ichelle Serrou
Attorney, Department of Labor, Office of the Solicitor, Civil Rights
Division.
[FR Doc. 01-12995 Filed 5-22-01; 8:45 am]
BILLING CODE 4510-27-M