[Federal Register: February 13, 2003 (Volume 68, Number 30)]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
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).
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
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
Dated: February 3, 2003, Washington, DC.
Charles E. James, Sr.,
Deputy Assistant Secretary for Federal Contract Compliance.
BILLING CODE 4510-CM-M
[GRAPHIC] [TIFF OMITTED] TN13FE03.000
[GRAPHIC] [TIFF OMITTED] TN13FE03.001
BILLING CODE 4510-CM-C
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
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
2. Attachment A of the Consent Decree consists of the Conciliation
Agreement between OFCCP and Defendant which became effective in March
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
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
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.
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
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
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
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.
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,
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
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,
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]