[Federal Register Volume 59, Number 176 (Tuesday, September 13, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-22602]
[[Page Unknown]]
[Federal Register: September 13, 1994]
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DEPARTMENT OF LABOR
Office of Federal Contract Compliance Programs
KRT Drywall/Acoustical, a/k/a Construction Associates, Debarment
AGENCY: Office of Federal Contract Compliance Programs, Labor.
ACTION: Notice of Debarment, KRT Drywall/Acoustical, a/k/a Construction
Associates, Logan, Utah.
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SUMMARY: This notice advises of the debarment of KRT Drywall/
Acoustical, a/k/a Construction Associates, (hereafter ``KRT''), 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: Annie Blackwell, Director Program
Policy, Office of Federal Contract Compliance Programs, U.S. Department
of Labor, 200 Constitution Avenue NW., Room C-3325, Washington, DC
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 KRT 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 KRT, and of its
officers, agents, servants, employees, successors (including
Construction Associates), 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 KRT ineligible
for extensions or other modifications of any existing Government
contracts or subcontracts; and declaring KRT and its officers, agents,
servants, employees, successors (including Construction Associates),
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 210 days and
thereafter, until KRT 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: September 7, 1994, Washington, D.C.
Shirley J. Wilcher,
Deputy Assistant Secretary for Federal Contract Compliance Programs.
Order Granting Plaintiff's Motion for a Default Judgment and Entry of
Sanctions
Date: August 18, 1994.
Case No. 94-OFC-14
In the Matter of: United States Department of Labor, Office of
Federal Contract Compliance Programs, Plaintiff v. KRT Drywall/
Acoustical, Defendant.
It appears that:
1. Plaintiff U.S. Department of Labor filed the complaint herein on
July 13, 1994 pursuant to the expedited hearing procedures set forth in
41 CFR 60-30.31 et seq. A copy of the complaint is attached hereto and
is incorporated herein by this reference.
2. The complaint and Plaintiff's Request for Admissions were served
on Defendant KRT Drywall/Acoustical by Federal Express and were
received by KRT on July 13, 1994.
3. KRT did not file an answer, nor has it requested an extension of
time within which to file an answer.
4. On August 9, 1994 Plaintiff filed a ``Motion for Default
Judgment and Entry of Sanctions'' on the grounds that Defendant failed
to file an answer or request an extension of time within 20 days after
service of the complaint as required by 41 CFR 60-30.6(a).
5. On August 10, 1994 Defendant filed an ``Objection to Plaintiff's
Motion For a Default Judgment and Entry of Sanctions'' requesting a
denial of the Plaintiff's default motion on the grounds that the
complaint ``may have been misplaced,'' and that therefore entry of
default ``will work an injustice upon KRT.''
6. On August 15, 1994 Plaintiff filed its response to Defendant's
objection contending that the provisions of 41 CFR 60.32(c) are
mandatory.
41 CFR 60.30.32(c) provides that if a hearing is not requested
within 25 days of the filing of the complaint, the allegations of the
complaint shall be adopted as findings, and the sanctions and/or
penalties sought in the complaint shall be imposed. It appears that the
above provisions of 41 CFR 60.30.32(c) are mandatory and not
discretionary.
Since Defendant has neither filed an answer nor asked for an
extension of time within which to answer, and has to date not requested
a hearing in any other way, Plaintiff's Motion for Default is granted
and Plaintiff's Proposed Findings of Fact and Conclusions of Law, which
are attached and incorporated herein by this reference, are adopted as
the findings herein.
It is therefore ordered that all of KRT's Federal contracts and
subcontracts are immediately canceled; and that KRT or Construction
Associates, its officers, agents, subsidiaries, and successors
(including Construction Associates), are declared 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 210 days, and thereafter until KRT has
demonstrated to the Deputy Assistant Secretary for Federal Contract
Compliance Programs that it is currently in compliance with the
provisions of the 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 past noncompliance, and that it will carry out
employment practices in compliance with the Executive Orders No. 11246,
11375 and 12086.
Alexander Karst,
Administrative Law Judge.
San Francisco, CA.
Administrative Complaint
Pursuant to 41 CFR 60-30.5 and 41 CFR 60-30.32, Plaintiff, Office
of Federal Contract Compliance Programs, United States Department of
Labor (hereinafter ``OFCCP''), by it attorneys, hereby files this
Administrative Complaint. The hearing, if requested, will be subject to
the expedited hearing procedures at 41 CFR 60-30.31, et seq. OFCCP
alleges the following:
1. This action is brought by OFCCP to enforce the contractual
obligations imposed by Executive Order No. 11246 (30 Fed. Reg. 12319),
as amended by Executive Order No. 11375 (32 Fed. Reg. 14303) and
Executive Order 12086 (43 Fed. Reg. 46501) (hereinafter ``the Executive
Order'') and the rules and regulations issued pursuant thereto.
2. Jurisdiction exists under Sections 208 and 301 of the Executive
Order and the following regulations: 41 CFR 60-1.34, 41 CFR 60-1.26 and
41 CFR 60-4.8 and 41 CFR Part 60-30.
3. KRT Drywall/Acoustical (hereinafter ``Defendant'') is a
construction contractor specializing in drywall work.
4. At all times pertinent hereto Defendant has maintained its
principal place of business in Logan, Utah.
5. At all times pertinent hereto Defendant has held a Federal or
federally assisted construction contract of $10,000 or more.
6. At all times pertinent hereto Defendant has been a Government
contractor, subcontractor or federally assisted construction contractor
within the meaning of the Executive Order and at all pertinent times
has been subject to the contractual obligations imposed on Government
contractors and subcontractors by the Executive Order and the
implementing regulations issued thereunder.
7. At all times pertinent hereto Defendant has been required to
abide by the affirmative action requirements set forth in 41 CFR Part
60-4.
8. On May 12, 1992, OFCCP commenced a compliance review of
Defendant. That review resulted in a Notice of Violation issued on May
26, 1992, finding that Defendant had violated its affirmative action
obligations in six specific respects.
9. On June 26, 1992, OFCCP and Defendant entered into a
Conciliation Agreement resolving the deficiencies identified in the May
26, 1992 Notice of Violation.
10. Defendant agreed in the Conciliation Agreement to provide OFCCP
with personnel activity reports at six month intervals. The reports
were to include information on the number of vacancies for each craft,
the number of contacts KRT had with linkage and recruitment sources to
fill those vacancies, the number of applications received by KRT from
each of its recruitment sources, the number of hires, and the total
number of applicants and hires by race, sex and ethnicity.
11. The Conciliation Agreement was to remain in full force and
effect until OFCCP determined that Defendant had submitted two
acceptable reports as defined by the Agreement.
12. Defendant agreed in the Conciliation Agreement to notify
certain employment and recruitment organizations when job vacancies
arose and to seek referrals from those organizations. The organizations
to be contacted included the Turning Point Program, the Indian
Employment Service and the Utah State Job Service.
13. The first personnel activity summary report was due on November
10, 1992, and was to cover the period of May 1, through October 31,
1992.
14. Defendant submitted a report on November 30, 1992, which stated
that the company had hired 10 male applicants in the last six months.
15. Defendant did not notify the Indian Employment Service or the
Turning Point Program of these 10 openings and did not request that
these sources supply applicants for any of these positions, as agreed
upon their conciliation agreement.
16. Defendant's first personnel activity report was not timely
submitted.
17. Defendant did not specifically request qualified female and
minority applicants when it listed job openings with Job Service.
18. Defendant did not, during the period May 1, through October 31,
1992 make every good effort to recruit and employ women.
19. By letter dated February 4, 1993, OFCCP notified Defendant that
its untimely filing of the first personnel activity report, its failure
to specifically request affirmative action job orders when it contacted
the Job Service, and its failure to make every good faith effort to
recruit and employ women during the period from May 1, through October
31, 1992, violated the June 16, 1992, Conciliation Agreement.
20. Defendant's second personnel activity report was due on May 10,
1993, and was to cover the period from November 1, 1992, through April
30, 1993.
21. On May 7, 1993, Defendant filed with OFCCP a letter stating
that there had been no hiring activity, and hence no contact with
linkage or recruitment sources during the period covered by the second
report.
22. OFCCP contacted and visited KRT during June and July 1993 in an
effort to confirm Defendant's representation that there had been no
hiring activity during the six months preceding the May 7, 1993,
letter.
23. The letter submitted by Defendant to OFCCP on May 7, 1993,
misstated defendant's hiring activity during the preceding six months.
24. During the period from November 1, 1992, through April 30,
1993, Defendant failed to maintain personnel records including hire
dates, termination dates and applicant information as required by the
June 16, 1992, Conciliation Agreement.
25. Defendant hired a number of individuals during the period from
November 1, 1992, through April 30, 1993.
26. Defendant did not contact the linkage organizations agencies
regarding vacancies filled during the period from November 1, 1992,
through March 30, 1993, and did not request those sources to supply
applicants for any of these positions.
27. The acts and practices described in paragraphs 16 through 18,
above, breached the June 16, 1992, Conciliation Agreement Defendant
entered into with OFCCP.
28. The acts and practices described in paragraphs 23 through 26,
above, breached the June 16, 1992, Conciliation Agreement Defendant
entered into with OFCCP.
29. The acts and practices described in paragraphs 16 through 18
and 23 through 26, above, violate Executive Order 11246, and the
regulations promulgated thereunder, and therefore violate KRT Drywall/
Acoustical's contractual obligations to the Federal Government.
30. Plaintiff notified Defendant of its determination that the
company had violated its obligations under the Conciliation Agreement.
Defendant has not demonstrated that it did abide by the terms of the
Conciliation Agreement and so, pursuant to 41 CFR 60-1.34(a),
enforcement proceedings may be initiated immediately.
31. KRT failed to contact the linkage organizations referenced in
the June 16, 1992, Conciliation Agreement; consequently, Defendant may
have failed to consider for employment qualified individuals registered
with these organizations.
32. Unless retrained by an Administrative Order, KRT Drywall/
Acoustical will continue to violate the obligations imposed upon it by
the Executive Order and the rules and regulations issued pursuant
thereto.
Wherefore, plaintiff prays for a decision and order pursuant to
Section 209 of the Executive Order, 41 CFR 60-1.26 and 41 CFR Part 60-
30, permanently enjoining Defendant, and its officers, agents,
servants, employees, successors, divisions and subsidiaries and those
persons in active concert or participation with it from violating the
Executive Order.
Plaintiff further prays for a decision and order debarring
Defendant and its officers, agents, servants, employees, successors,
divisions and subsidiaries and those persons in active concert or
participation with it, from entering into future Government contracts,
subcontractors or federally assisted construction contracts until such
time as Defendant satisfies the Deputy Assistant Secretary for Federal
Contract Compliance Programs that it has undertaken to correct past
acts of noncompliance and that it is currently in compliance with the
provisions of the Executive Order and the regulations promulgated
thereunder, but in no event less than 210 days.
Plaintiff further prays for a decision and order canceling any
contracts Defendant may hold by the time a final order is issued.
Plaintiff further prays for such other relief as justice may
require.
Respectfully submitted,
Thomas S. Williamson, Jr.,
Solicitor of Labor.
James D. Henry,
Associate Solicitor.
Debra A. Millenson,
Senior Trial Attorney.
L. Denise Galambos,
Attorney.
Certificate of Service
I hereby certify that on this 12th day of July 1994, the foregoing
Administrative Complaint has been served upon Kenneth R. Thigpen,
President of KRT Drywall/Acoustical, by Federal Express, postage
prepaid, at the following address: 1375 West 200 North, Logan, Utah
84321.
Sonya Boyd,
Legal Technician.
Plaintiff's Proposed Findings of Fact and Conclusions of Law\1\
Plaintiff Office of Federal Contract Compliance Programs
(``OFCCP'') filed this action on July 12, 1994. As is set forth more
fully in OFCCP's Motion for a Default Judgment and Entry of Sanctions
filed this date, defendant KRT Drywall/Acoustical a/k/a Construction
Associates (hereinafter ``KRT'') failed to answer the Administrative
Complaint or to request a hearing within the period provided by the
applicable regulations. 41 CFR 60-30.6 and 60-30.32. The Administrative
Law Judge therefore is required to enter a default judgment against
KRT. 41 CFR 60-30.32(c).
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\1\All the statements contained in this document have been drawn
from the Administrative Complaint and OFCCP's Requests for
Admission. Because KRT failed to answer the Requests for Admission,
they should be deemed admitted.
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OFCCP proposes that the following Findings of Fact and Conclusions
of Law be included in the Order of Judgment issued in this case.
I. Findings of Fact
1. KRT Drywall/Acoustical (``KRT'') is a construction contractor
specializing in drywall work.
2. At all times pertinent hereto KRT has held a federal or
federally assisted construction contract or subcontract of $10,000 or
more.
3. On May 12, 1992, OFCCP commenced a compliance review of KRT.
4. On May 26, 1992, OFCCP issued to KRT a Notice of Violation
finding that KRT had violated its affirmative action obligations in six
specific respects and was not in compliance with the requirements of
Executive Order 11246.
5. On June 16, 1992, OFCCP and KRT entered into a Conciliation
Agreement resolving the deficiencies identified in the May 26, 1992
Notice of Violation.
6. KRT agreed in the Conciliation Agreement to provide OFCCP with
personnel activity reports at six month intervals. These reports were
to include information for the relevant six-month period on the number
of vacancies for each craft, the number of contacts KRT had with
linkage and recruitment sources to fill those vacancies, the number of
applications received by KRT from each of its recruitment sources, the
number of hires, and the total number of applicants and hires by race,
sex and ethnicity.
7. The Conciliation Agreement was to remain in full force and
effect until OFCCP determined that KRT had submitted two acceptable
reports as defined by the Agreement.
8. KRT agreed in the Conciliation Agreement to notify certain
employment and recruitment organizations when job vacancies arose and
to seek referrals from those organizations. The organizations to be
contacted included the Turning Point Program, the Indian Employment
Service and the Utah State Job Service.
9. The first personnel activity summary report was due to OFCCP on
November 10, 1992, and was to cover the period of May 1, through
October 31, 1992.
10. On November 30, 1992, KRT submitted a report which stated that
the company had hired 10 male applicants in the six month period
covered by the report.
11. KRT's first personnel activity report was not timely submitted.
12. KRT did not notify the Indian Employment Service or the Turning
Point Program of these 10 openings and did not request that these
sources supply applicants for any of these positions, as agreed upon in
their conciliation agreement.
13. KRT did not specifically request qualified female and minority
applicants when it listed job openings with Job Service.
14. KRT did not, during the period May 1, through October 31, 1992
make every good effort to recruit and employ women.
15. On February 4, 1993, OFCCP notified KRT that its untimely
filing of the first personnel activity report, its failure to
specifically request affirmative action job orders when it contacted
the Job Service, and its failure to make every good faith effort to
recruit and employ women during the period from May 1, through October
31, 1992, violated the June 16, 1992, Conciliation Agreement.
16. KRT's second personnel activity report was due on May 10, 1993,
and was to cover the period from November 1, 1992, through April 30,
1993.
17. On May 7, 1993, KRT filed with OFCCP a letter stating that
there had been no hiring activity, and hence no contact with linkage or
recruitment sources, during the period covered by the second report.
18. OFCCP contacted and visited KRT during June and July 1993 in an
effort to confirm KRT's representation that there had been no hiring
activity during the six months preceding the May 7, 1993, letter.
19. KRT's letter to OFCCP of May 7, 1993, misstated KRT's hiring
activity during the preceding six months.
20. During the period from November 1, 1992, through April 30,
1993, KRT failed to maintain personnel records including hire dates,
termination dates and applicant information as required by the June 16,
1992, Conciliation Agreement.
21. KRT hired at least twenty seven individuals during the period
from November 1, 1992, through April 30, 1993.
22. KRT did not contact the linkage organizations agencies
regarding vacancies filled during the period from November 1, 1992,
through March 30, 1993, and did not request those sources to supply
applicants for any of these positions.
23. On September 14, 1993, OFCCP notified KRT of its determination
that the company had violated its obligations under the Conciliation
Agreement. OFCCP provided KRT 15 days in which to respond.
24. KRT failed to demonstrate within the 15-day period that it did
abide by the terms of the Conciliation Agreement.
25. On July 12, 1994, OFCCP filed an Administrative Complaint in
this matter and served upon KRT Requests for Admission.
26. To date, KRT has not answered either the Administrative
Complaint or the Requests for Admission.
II. Conclusions of Law
1. The Office of Administrative Law Judges has jurisdiction over
this matter pursuant to Sections 201, 208, and 209 of Executive Order
11246, and 41 CFR 60-1.26 and 41 CFR Part 60-30 of the Secretary of
Labor's implementing regulations, and is empowered to issue a final
order determining whether KRT is in current violation of its
obligations under the Executive Order and its implementing regulations
and to recommend appropriate remedies and sanctions. 41 CFR 60-
30.32(c).
2. KRT is a Government contractor, subcontractor or Federally
assisted construction contractor within the meaning of the Executive
Order. At all material times KRT has been subject to the contractual
obligations imposed on Government contractors and subcontractors by the
Executive Order, and the implementing regulations issued thereunder.
3. At all material times, KRT has been required to abide by the
affirmative action requirements set forth in 41 CFR Part 60-4.
4. KRT breached its obligations under the Conciliation Agreement
entered into on June 16, 1992.
5. KRT's actions as described in the Findings of Fact, above,
violate Executive Order 11246, and the regulations promulgated
thereunder.
6. The Executive Order, and its implementing regulations authorize
sanctions, including contract cancellation and debarment. See, Section
209 of the Executive Order.
7. Sanctions are appropriate when, as here, a contractor has failed
to abide by the terms of a conciliation agreement, and is in violation
of the Executive Order.
8. Under the applicable regulation where, as here, a defendant
fails to answer an administrative complaint or to request a hearing
within 20 days of service of that complaint, its right to a hearing
shall be deemed waived and the Administrative Law Judge shall order the
sanctions and remedies sought in the administrative complaint. 41 CFR
60-30.32(c).
9. For these reasons, I order that all of KRT's Federal contracts
and subcontracts immediately be canceled and that KRT or Construction
Associates, its officers, agents, subsidiaries, and successors
(including Construction Associates), be declared 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 210 days, and thereafter until KRT 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.
III. Conclusion
OFCCP requests that these proposed Findings of Fact and Conclusions
of Law be adopted by the Administrative Law Judge.
Respectfully Submitted,
Thomas S. Williamson, Jr.,
Solicitor of Labor.
James D. Henry,
Associate Solicitor.
Debra A. Millenson,
Senior Trial Attorney.
L. Denise Galambos,
Attorney.
Certificate of Service
I hereby certify that on this 8th day of August, 1994 the foregoing
Plaintiff's Proposed Findings of Fact and Conclusions of Law have been
served upon Aaron Milligan, Chief Executive Officer of KRT Drywall/
Acoustical, by Federal Express, postage prepaid, at the following
address: 1375 West 200 North, Logan, Utah 84321.
Sonya Boyd,
Legal Technician.
Service Sheet
Case Name: KRT Drywall/Acoustical
Case Number: 94-OFC-14
Title of Document: Order Granting Plaintiff's Motion for a Default
Judgment and Entry of Sanctions
A copy of the above document was sent to the following:
Kenneth R. Thigpen, President, KRT Drywall/Acoustical, Attn: Sonya
Boyd, 1375 West 200 North, Logan, Utah 84321
Karen Diddens, Compliance Office, U.S. Department of Labor, 10 West
Broadway, Suite 305, Salt Lake City, Utah 84101
T.A. Housh, Jr., Regional Solicitor, Region VII, U.S. Department of
Labor, 911 Walnut St., 21st Floor, Kansas City, MO 64106
Thomas S. Williamson, Jr., Solicitor of Labor, Attn: L. Denise
Galambos, Esq., Office of the Solicitor/USDOL, Room S-2002, 200
Constitution Avenue, NW., Washington, DC 20210
Director, Office of Admin. Appeals, Department of Labor, Room S-4309,
200 Constitution Avenue, NW., Washington, DC 20210, P194-427-378
Civil Rights Division, Office of the Solicitor, U.S. Department of
Labor, Room N-2464, 200 Constitution Avenue, NW., Washington, DC 20210
Special Counsel to the Assistant Secretary of Labor, U.S. Department of
Labor, Employment & Training Admin., Room N-4671, 200 Constitution
Avenue, NW., Washington, DC 20210
Office of Federal Contract Compliance Programs, U.S. Department of
Labor, Room C-3325, 200 Constitution Avenue, NW., Washington, DC 20210
Millie Janey,
Reporter.
Dated: August 18, 1994.
[FR Doc. 94-22602 Filed 9-12-94; 8:45 am]
BILLING CODE 4510-27-M