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Notice of Debarment   [2/13/2003]
[PDF]
FR Doc 03-3560

[Federal Register: February 13, 2003 (Volume 68, Number 30)]
[Notices]               
[Page 7394-7399]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13fe03-77]                         


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DEPARTMENT OF LABOR


Office of Federal Contract Compliance Programs


 
Notice of Debarment


AGENCY: Office of Federal Contract Compliance Programs, Labor.


ACTION: Notice of debarment: BFI Waste Services, L.L.C.'s 260 West 
Dickman Street, Baltimore, facility (Division 50).


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SUMMARY: This notice advises of the debarment of BFI Waste Services, 
L.L.C.'s 260 West Dickman Street, Baltimore, Maryland Facility 
(Division 50), (hereinafter ``BRI''), as an eligible bidder on 
Government contracts or extensions or modifications of existing 
contracts. The debarment is effective immediately.


FOR FURTHER INFORMATION CONTACT: Charles E. James, Sr., 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 January 30, 2003, the United States 
Department of Labor's Administrative Law Judge Thomas M. Burke approved 
a Consent Decree, pursuant to Executive Order 11246, and its 
implementing regulations (41 CFR parts 60-1 et seq.). Under the terms 
of the Consent Decree, BFI Waste Service, L.L.C., its officers, agents, 
servants, employees, successors, divisions, subsidiaries, and persons 
in active concert or participation with them, agrees not to bid for or 
enter into Government contracts for a period of one hundred eighty 
(180) days from the effective date of this Consent Decree. The 
debarment shall be lifted at the conclusion of the one hundred eighty 
(180) day period, if BFI satisfies the Deputy Assistant Secretary that 
it is in compliance with Executive Order 11246. Further, the Consent 
Decree provides that during the debarment period, on BFI Facility will 
enter into any Government contracts and subcontracts that BFI's 260 
West Dickman Street, Baltimore, Maryland Facility (Division 
50), would have otherwise bid for and entered into during the 
debarment period.


    Dated: February 3, 2003, Washington, DC.
Charles E. James, Sr.,
Deputy Assistant Secretary for Federal Contract Compliance.
BILLING CODE 4510-CM-M


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[GRAPHIC] [TIFF OMITTED] TN13FE03.001


BILLING CODE 4510-CM-C


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Office of Administrative Law Judges; Consent Decree


    This Consent Decree (hereinafter ``Consent Decree'' or ``Decree'') 
is entered into between the Plaintiff, United States Department of 
Labor, Office of Federal Contract Compliance Programs (hereinafter 
``OFCCP''), and Defendant BFI Waste Services, LLC (hereinafter ``BFI'' 
or ``Defendant''), in resolution of the Administrative Complaint filed 
by OFCCP pursuant to Executive Order 11246 (30 FR 12319), as amended by 
Executive Order 11375 (32 FR 14303) and Executive Order 12086 (43 FR 
46501) (``Executive Order''). The Administrative Complaint alleged that 
Defendant violated the terms of a Conciliation Agreement that was 
executed by Defendant and OFCCP and that became effective in March 
2000.


Part A. General Provisions


    1. The record on the basis of which this Consent Decree is entered 
shall consist of the Complaint and the Consent Decree and the 
attachments thereto.
    2. Attachment A of the Consent Decree consists of the Conciliation 
Agreement between OFCCP and Defendant which became effective in March 
2000.
    3. This Consent Decree shall not become final until it has been 
signed by the Administrative Law Judge, and the effective date of the 
Decree shall be the date it is signed by the Administrative Law Judge.
    4. This Consent Decree shall be binding upon Defendant 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.
    5. All further procedural steps to contest the binding effect of 
the Consent Decree, and any right to challenge or contest the 
obligations entered into in accordance with the agreement contained in 
this Decree, are waived by the parties, except as provided hereunder.
    6. Subject to the performance by Defendant of all duties and 
obligations contained in this Consent Decree, all alleged violations 
identified in the Administrative Complaint shall be deemed fully 
resolved. However, nothing herein is intended to relieve Defendant from 
compliance with the requirements of Executive Order 11246, Section 503 
of the Rehabilitation Act, the Vietnam Era Veterans' Readjustment and 
Assistance Act, or their regulations, nor to limit OFCCP's right to 
review Defendant's compliance with such requirements.
    7. Defendant agrees that there will be no retaliation of any kind 
against any beneficiary of this Consent Decree, or against any person 
who has provided information or assistance in connection with this 
Decree.
    8. Defendant denies that it violated Executive Order 11246.
    9. Defendant does not admit any violation of law or obligation. The 
parties agree that this Consent Decree is not, and may not be used, as 
an admission of any violation by Defendant, or as a basis for asserting 
Defendant's noncompliance with any labor and employment law, rules, or 
regulations, except for any action initiated pursuant to Paragraphs 27 
to 30 of this Decree.


Part B. Jurisdiction and Procedural History


    10. In its initial compliance review of Defendant in November 1999, 
OFCCP identified three violations of Executive Order 11246.
    11. In March 2000, OFCCP and Defendant entered into a Conciliation 
Agreement to resolve the three violations.
    12. Defendant was obligated to correct three alleged violations 
under the Conciliation Agreement, including: (1) Defendant's failure to 
provide accurate applicant flow data in support of its Affirmative 
Action Program; (2) Defendant's failure to offer equal employment 
opportunity to an applicant, Ms. Julie Ann Dunlap, for a position in 
the office and clerical job group; and (3) Defendant's failure to make 
good faith efforts to develop and execute an affirmative action plan to 
recruit women for the underutilized craftworker and laborer job groups.
    13. The Conciliation Agreement obligated Defendant to provide two 
annual reports to enable OFCCP to monitor the company's compliance with 
the terms of the Conciliation Agreement. After Defendant submitted the 
first of the two reports, OFCCP determined that Defendant failed to 
comply with two provisions of the Conciliation Agreement. Specifically, 
OFCCP found that Defendant failed to (1) offer a customer service 
position to Ms. Julie Ann Dunlap with retroactive seniority and vesting 
status dating back to September 8, 1998, as well as a check for 
$32,708.98 in back pay and interest through December 31, 1999; and (2) 
provide the specified recruitment sources with timely notice of its 
employment opportunities in the craftworker and laborer job groups.
    14. Defendant contends that it made good faith efforts to offer Ms. 
Julie Ann Dunlap employment, but that Ms. Dunlap never responded.


Part C. Specific Provisions


Job Offer to Ms. Julie Ann Dunlap


    15. If Ms. Dunlap executes and returns the General Release and 
Covenant Not to Sue described in paragraph 16 below, Defendant will 
offer the next available full-time customer service position at its 
Baltimore, Maryland facility to Ms. Julie Ann Dunlap as set forth 
below. The terms of this job offer will include retroactive seniority 
and vesting status dating back to September 8, 1998, the date of Ms. 
Dunlap's original application. The job offer will be made in writing by 
certified mail, return receipt requested, and will describe the job 
title, rate of pay, job site, description of job benefits, start date, 
expected duration of the job, and will specify a time period of at 
least two weeks for Ms. Dunlap to respond to the employment offer. The 
written job offer will explicitly state that it includes retroactive 
seniority and vesting status dating back to September 8, 1998. If Ms. 
Dunlap's address is unknown, Defendant will make all reasonable efforts 
to obtain Ms. Dunlap's current address. When Ms. Dunlap's current 
address is obtained, BFI will offer her the next available full-time 
customer service position. If Ms. Dunlap does not respond or execute 
and return the General Release and Covenant Not to Sue described in 
paragraph 16 below to ``BFI Waste Services, L.L.C., at 260 West Dickman 
Street, Baltimore, Maryland 21230, Attn: Bill Booth, General Manager'', 
within (14) days of receiving the offer, Defendant's hiring obligation 
hereunder shall cease. Defendant's hiring obligation will also cease if 
Ms. Dunlap fails the drug screen or the background check (consisting of 
a check of criminal records and references). Defendant affirms that 
these screens are administered to all applicants for customer service 
positions, and will be handled in a non-discriminatory manner and in 
accordance with policy and procedure. If Defendant determines that the 
results of Ms. Dunlap's drug screen or background check preclude her 
from employment, Defendant will provide information and documentation 
to OFCCP demonstrating that the failure to hire Ms. Dunlap is non-
discriminatory and consistent with Defendant's policies and practices. 
Defendant will provide the name, job title, and business telephone 
number of each employee who made, or


[[Page 7398]]


contributed to, the decision not to hire Ms. Dunlap. Defendant agrees 
that OFCCP may review compliance with this Paragraph, and will provide 
OFCCP within a reasonable time with all documents that are reasonable 
and are requested by OFCCP. Defendant also agrees that, upon reasonable 
advance notice, OFCCP may come onsite at the BFI 260 West Dickman 
Street, Baltimore, Maryland facility as is necessary to review 
compliance with this Paragraph.


Monetary Relief to Ms. Julie Ann Dunlap


    16. Within 10 days of the date upon which it receives a fully 
executed copy of this Decree, Defendant will send Ms. Dunlap by 
certified mail, return receipt requested the letter contained in 
Attachment B, along with a W-4 form and a General Release and Covenant 
Not to Sue, and ask that she complete both and return them at the 
address specified in the letter to Defendant within 14 days of her 
receipt thereof (as determined by the date she signs the return receipt 
card). Within 10 days of receiving the completed W-4 form and executed 
General Release and Covenant Not to Sue, Defendant will submit by 
certified mail, return receipt requested two checks to Ms. Julie Ann 
Dunlap in the total amount of $44,838.91 minus legal payroll 
deductions. The parties agree that this payment represents back pay 
(the first check) and interest (the second check) due to Ms. Dunlap for 
the period of September 8, 1998, to December 31, 2002. For tax 
purposes, the parties agree that $35,289.58 of the total payment 
represents back pay and the remaining $9,549.33 represents interest.
    17. If Ms. Dunlap's address is unknown as of 10 days from the date 
upon which Defendant receives a fully executed copy of this Decree, 
Defendant will deposit the check for Ms. Dunlap into an interest 
bearing escrow account at that time. Defendant and OFCCP, jointly, will 
make all reasonable efforts to obtain Ms. Dunlap's current address. 
Defendant will pay Ms. Dunlap the balance of the escrow account, 
including accrued interest, within 10 days of the date upon which 
Defendant receives a completed W-4 form and the executed General 
Release and Covenant Not to Sue. In the event Ms. Dunlap does not 
receive the letter from BFI, the money shall remain in the escrow 
account until the cessation of the term of this Consent Decree. At the 
cessation of the term of the Consent Decree, the escrow account shall 
revert to the Department of Labor, which will maintain the escrow 
account for Ms. Dunlap's benefit. If Ms. Dunlap is located thereafter, 
the Department of Labor will tender the money to Ms. Dunlap upon 
receipt of the executed General Release and Covenant Not to Sue, which 
it will forward to Defendant.


Recruitment Efforts


    18. For a period of two years from the effective date of this 
Consent Decree, Defendant agrees to notify the recruitment and 
community agencies listed on page 11 of the Conciliation Agreement at 
least two weeks before interviewing is initiated for positions in the 
craftworker and laborer job groups. Defendant shall inform such 
recruitment sources of the minimum job qualifications required, wages, 
closing date for the vacancy, a job description, and the application 
procedures.


Reporting Requirements


    19. Defendant agrees to provide reports to the U.S. Department of 
Labor, Office of the Solicitor, Division of Civil Rights, 200 
Constitution Avenue NW., Room N-2464, Washington, DC 20210. Defendant 
will file a total of four reports according to the following schedule:


----------------------------------------------------------------------------------------------------------------
            Report number                                Covering period                       Due to be sent
                                                        (after effective date of Consent Decree)
--------------------------------------
1....................................  Days 1-60.........................................  Day 90.
2....................................  Days 61-120.......................................  Day 150.
3....................................  Days 121-360......................................  Day 390.
4....................................  Days 361-720......................................  Day 750.
----------------------------------------------------------------------------------------------------------------


The reports will include documentation verifying the following 
information:
    a. Defendant's job offer to Ms. Dunlap; or, if Ms. Dunlap is not 
hired due to the results of a drug screen and/or background check, 
Defendant will provide the information specified in Paragraph 15 of 
this Decree;
    b. Defendant's deposit of monetary relief into an interest bearing 
escrow account, if Ms. Dunlap's address in unknown or she does not 
respond, send a W-4 form or execute the General Release and Covenant 
Not to Sue, including a statement of the balance of the account;
    c. Defendant's payment of monetary relief to Ms. Dunlap when (and 
if) her current address is obtained, including the address to which the 
check was sent, the amount of the check, the date on which the check 
was mailed, and documentation verifying payment on the check; and
    d. Defendant's good faith efforts to recruit and hire women in the 
craftworker and laborer job groups. Such documentation shall include, 
but shall not be limited to copies of letters sent to recruitment 
sources and an applicant log for positions in the craftworker and 
laborer job groups, specifying the name, gender, position applied for, 
job group number, date of application, referral source, and disposition 
of each applicant.


Debarment


    20. The Office of Administrative Law Judges shall retain 
jurisdiction in this case for a period of two years from the effective 
date of this Consent Decree.
    21. Defendant's 260 West Dickman Street, Baltimore, Maryland 
facility (Division 050) agrees not to bid for or enter into 
Government contracts or subcontracts for a period of one-hundred and 
eighty (180) days from the effective date of this Consent Decree. This 
debarment period shall be effective against the officers, agents, 
servants, employees, successors, divisions, subsidiaries, and persons 
in active concert or participation with Defendant's 260 West Dickman 
Street, Baltimore, Maryland facility (Division 050). During 
the debarment period, no BFI facility will enter into any Government 
contracts or subcontracts that BFI's 260 West Dickman Street, 
Baltimore, Maryland facility (Division 050) would have 
otherwise bid for and entered into during the debarment period.
    22. Notice of the debarment of ``BFI's 260 West Dickman Street, 
Baltimore, Maryland facility (Division 050)'' shall be printed 
in the Federal Register. In addition, OFCCP shall notify the 
Comptroller General of the United States General Accounting Office and 
all Federal Contracting Officers that ``BFI's 260 West Dickman Street, 
Baltimore,


[[Page 7399]]


Maryland facility (Division 050)'' is ineligible for the award 
of any Government contracts or subcontracts.
    23. The debarment shall be lifted at the conclusion of the one-
hundred and eighty (180) day period if Defendant satisfies the Director 
of OFCCP that it is in compliance with Executive Order 11246.
    24. OFCCP shall review each of Defendant's reports and shall 
determine whether Defendant has complied with the terms of this Consent 
Decree and the terms of Executive Order 11246 and its implementing 
regulations. OFCCP shall notify Defendant in writing, within 30 days of 
receipt of the report, if there is a deficiency. Defendant shall have 
30 days from its receipt of the deficiency notice to correct such 
deficiency.
    25. If OFCCP finds that Defendant has complied with the terms of 
this Consent Decree and with the terms of Executive Order 11246, the 
debarment shall be lifted and Defendant shall be free to enter into 
future Government contracts and subcontracts. Beginning 30 days before 
the conclusion of the 180-day period, Defendant may request 
reinstatement pursuant to 41 CFR Sec.  60-1.31. Reinstatement 
proceedings shall be in accordance with 41 CFR Sec.  60-1.31. Notice of 
the reinstatement shall be printed in the Federal Register and shall be 
made to the Comptroller General of the General Accounting Office and 
all Federal Contracting Officers.


Part D. Implementation and Enforcement of the Decree


    26. Jurisdiction, including the authority to issue any additional 
orders or decrees necessary to effectuate the implementation of the 
provisions of this Consent Decree, is retained by the Office of 
Administrative Law Judges for a period of two years from the date this 
Consent Decree becomes final. If any motion is pending before the 
Office of Administrative Law Judges two years from the date this 
Consent Decree becomes final, jurisdiction shall continue beyond two 
years and until such time as the pending motion is finally resolved.
    27. If at any time during the two years OFCCP believes that 
Defendant has violated any portion of this Consent Decree, Defendant 
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. In addition, the notification will provide 
Defendant with 15 days to respond in writing except where OFCCP alleges 
that such a delay would result in irreparable injury.
    28. Enforcement proceedings for violation of this Consent Decree 
may be initiated at any time after the 15-day period referred to in 
Paragraph 24 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 relate solely to 
the issues of the factual and legal claims made in the motion.
    29. Liability for violation of this Consent Decree shall subject 
Defendant to sanctions set forth in the Executive Order and its 
implementing regulations, as well as other appropriate relief, 
including contract cancellation.
    30. 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 the plaintiff or Defendant, as appropriate, 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 twenty (20) days of service. The Office of 
Administrative Law Judges may, if it deems it appropriate, schedule an 
oral hearing on the application or motion.
    31. The Consent Decree herein set forth is hereby approved and 
shall constitute the final Administrative Order in this case.
    32. It is so ordered adjudged and decreed.
Agreed and Consented to:
On Behalf of BFI Waste Services, LLC:
    Dated: December 19, 2002.


Jo Lynn White,
Officer, BFI Waste Services, LLC.
On Behalf of the Office of Federal Contract Compliance Programs:
Eugene Scalia, Solicitor of Labor.
Gary M. Buff,
Associate Solicitor.
Richard L. Gilman,
Counsel for Litigation.
    Dated: December 27, 2002
Sarah C. Crawford,
Attorney, U.S. Department of Labor, Room N-2464, 200 Constitution Ave., 
NW., Washington, DC 20210, (202) 693-5287.


Thomas M. Burke,
Administrative Law Judge.


Notice to Readers


    Attachments A & B are available from the U.S. Department of Labor's 
Wirtz Labor Library, 200 Constitution Avenue, NW., Room N2439, 
Washington, DC 20210. It is open to the public from 8:15 am to 4:45 pm. 
For further information call (202) 693-6613.


[FR Doc. 03-3560 Filed 2-12-03; 8:45 am]