OFCCP v. Carolina Freight Carriers Corp., 93-OFC-15 (ALJ Apr. 7, 1994)

USDOL/OALJ Reporter
OFCCP v. Carolina Freight Carriers Corp., 93-OFC-15 (ALJ Apr. 7, 1994)

U.S. Department of Labor
Office of Administrative Law Judges
800 K Street, N.W.
Washington, D.C. 20001-8002

DATE: APR 7 1994
CASE NO.: 93-OFC-15

In the Matter of:

U.S. DEPARTMENT OF LABOR, OFFICE OF
FEDERAL CONTRACT COMPLIANCE PROGRAMS,
Plaintiff

CAROLINA FREIGHT CARRIERS CORP.,
Defendant

Appearances:

Debra A. Millenson, Esq. Richard L. Gilman, Esq.
For the Plaintiff

Peter R. Corbin, Esq.
For the Defendant

James D. Fagan, Jr., Esq.
For Local 728, International Brotherhood
of Teamsters (Intervenor)

Before:    JOHN M. VITTONE
       Deputy Chief Administrative
       Law Judge

RECOMMENDED DECISION APPROVING CONSENT DECREE

The above captioned case is before the undersigned pursuant to an October

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20, 1993 Recommended Decision Remanding Consent Decree. The procedural history and factual background for this matter are set forth in that decision.

In accordance with the Recommended Decision Remanding Consent Decree, the U.S. Department of Labor, Office of Federal Contract Compliance Programs ("OFCCP"), filed a Revised Consent Decree with a memorandum in support of its entry on January 31, 1994. Local 728, International Brotherhood of Teamsters ("Local 728"), filed a Memorandum in opposition to Revised Consent Decree on February 14, 1994, followed by a February 22, 1994 reply filed on behalf of OFCCP.

ISSUE

The issue before the undersigned is whether the Revised Consent Decree is adequate, fair and reasonable in light of the instructions given in the Recommended Decision Remanding Consent Decree. See Stotts v. Memphis Fire Dept. , 679 F.2d 541 (6th Cir. 1982), rev'd on other grounds sub nom Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561 (1984).

DISCUSSION

In the October 20, 1993 Recommended Decision, the undersigned ruled that Local 728 had met its burden of demonstrating that the retroactive seniority provisions in the Proposed Consent Decree were unfair and unreasonable. The case was remanded for reconsideration of the retroactive seniority dates set forth in the Proposed Consent Decree.¹ OFCCP and Carolina Freight were to consider: 1) whether the Charging Parties had turned down offers of employment by Carolina Freight for regular full time jobs; and 2) whether the Charging Parties held seniority at other trucking companies covered by the National Master Freight Agreement in determining the new seniority dates.

In its Memorandum Concerning Entry of Proposed Consent Decree, OFCCP states that it has examined the case file in accordance with my original Decision.² As a result of its examination, OFCCP submitted a Revised Consent Decree which does not contain seniority adjustments for Albert Fleetwood and Tott Griffin. The seniority adjustments for the other five individuals remain the same.

In explaining its Revised Consent Decree, OFCCP states that review of the record revealed that while Mr. Griffin was a casual employee, he was offered a regular full time position with Carolina Freight which he refused.³ Thus, Mr. Griffin was removed from the adjusted seniority list. OFCCP also removed Mr. Fleetwood from the adjusted seniority list due to testimony at the fairness hearing that he was offered and refused job offers for full time positions while he was a casual employee at Carolina Freight. (Tr. 60, 89-92).

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With respect to the other five individuals who remain on the adjusted seniority list, OFCCP states that no evidence was presented at the fairness hearing, or revealed from an examination of the case file, to indicate that any of these men turned down an offer of full time employment with Carolina Freight.⁴

Local 728, in its response to OFCCP's submissions, requests that the Revised Consent Decree be disapproved and that this case be remanded to the parties for further discovery. Additionally, Local 728 requests that another hearing be held to consider the issues raised in its response. Local 728's presentation of its arguments and requests can be divided into two distinct sections. The first deals with Local 728's general objection to the Notification of Results of Investigation ("NRI") and its request for additional discovery. The second pertains to the placement of Ed Foster ("Foster") on the adjusted seniority list of the Revised Consent Decree.

Local 728 revisits many of its original arguments when contending that all aspects of the Revised Consent Decree should be rejected by the undersigned. In essence, Local 728 argues that OFCCP improperly assumed that all casual employees who worked for Carolina Freight desired to become regular full time employees of the company when preparing the NRI. Thus, Local 728 requests that this case be either remanded or reheard to consider whether any of the Charging Parties actually desired to have regular full time jobs with Carolina Freight at the times in question.

Local 728 uses the United States Supreme Court's instructions to the District Court in International Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977), to support the proposition that this court must consider whether the alleged discriminatees wanted or desired the jobs in question. In Teamsters, the Court directed the District Court to "recreate the conditions and relationships that would have been had there been no unlawful discrimination." Id. at 372 citing Franks v. Bowman Transp. Co., 424 U.S. 747, 769 (1976). While the undersigned is cognizant of the Court's holding in Teamsters, it is unnecessary to recreate the conditions and relationships that would have been had there been no unlawful discrimination in determining whether the retroactive seniority provisions of the Revised Consent Decree are adequate, fair and reasonable. The Court in Teamsters remanded the case for the District Court to first determine which of the minority employees were actual victims of the company's discriminatory practices. Teamsters, 431 U.S. at 371-372. Then, once the victims were identified, the District Court would recreate the conditions and relationships that would have been had there been no unlawful discrimination. Id. at 372. Such determinations need not be made in this case.

The issue before the undersigned is whether the retroactive seniority provisions of the Revised Consent Decree are adequate, fair and reasonable. It is unnecessary to engage in discovery akin to that faced by the District Court in Teamsters because the undersigned does not have to determine who may have been discriminated against and inquire into those discriminatees' subjective willingness to have regular full time jobs at Carolina

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Freight. In fact, the approach recommended by Local 728 is inconsistent with case law which favors voluntary settlement of Title VII and other employment discrimination cases. Stotts, 679 F.2d at 554. As the Ninth Circuit stated in Officers for Justice v. Civil Service Commission, Etc., 688 F.2d 615, 625 (9th Cir. 1982), cert. denied, 459 U.S. 1217 (1983), "the settlement or fairness hearing is not to be turned into a trial or rehearsal for the trial on the merits." To subject the parties to the discovery contemplated by Local 728 would render the established principle of encouraging settlement meaningless and would overstep the bounds by which this court is to operate in this case. See September 2, 1993 Order, at 2 (denying Local 728's request to conduct discovery).

The Recommended Decision Remanding Consent Decree instructed the parties to consider: 1) whether the Charging Parties had turned down offers of employment by Carolina Freight for regular full time jobs; and 2) whether the Charging Parties held seniority at other trucking companies covered by the National Master Freight Agreement. These factors are sufficient to determine whether the retroactive seniority provisions of the Revised Consent Decree are adequate, fair and reasonable. This approach is consistent with the limited scope of this proceeding and the holding in Teamsters, as well as Local 728's limited right to be heard on the provisions of the Proposed Consent Decree that pertain to the impact of the litigation on it. W.R. Grace and Co. v. Local Union 759, 461 U.S. 757, 771 (1983), OFCCP v. National City Bank of Cleveland, 80 OFCCP 31, Secretary of Labor Decision and Order, September 9, 1982.

In light of the foregoing, Local 728's request that this case be either remanded or reheard to consider whether any of the Charging Parties actually desired to have regular full time jobs with Carolina Freight at the times in question, and Local 728's request to engage in discovery, are hereby DENIED.

The second major section of Local 728's objections to the Revised Consent Decree deals with the placement of Foster on the adjusted seniority list of the Revised Consent Decree. Foster's seniority is adjusted from October 13, 1991 to April 1, 1991.

Local 728 argues, based on Foster's employment application filed with Carolina Freight, that Foster was not interested in full time employment at Carolina Freight, and may in fact have been foreclosed from such full time employment because he may have been a full time employee at Yellow Freight. In the event that the undersigned finds that such information is insufficient, Local 728 requests additional discovery with regards to Foster's employment at Yellow Freight, as well as his desire to work full time at Carolina Freight.

The arguments presented by Local 728 are based on the fact that Foster checked "casual" on his employment form with Carolina Freight, that the application is dated December 6, 1990, and that he indicated that he was employed with Yellow Freight at the time of the application. Resolution of these arguments turns on whether Foster was, in fact, employed with Carolina Freight in February, 1990, as contended by OFCCP, or whether he did

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not apply to the company until December 6, 1990. If the latter is true, Local 728's argument that Foster's adjusted seniority is unfair has merit, based on Foster's full time employment with Carolina Freight beginning on October 13, 1991.⁵

OFCCP, in its February 22, 1994 Reply to [Local 728's] Memorandum in Opposition to Revised Consent Decree, contends that the record introduced by Local 728 at the hearing demonstrates that Foster was hired as a casual employee in February of 1990, and that at the time of his application, Foster was a casual at Yellow Freight. OFCCP points to the testimony elicited by Local 728 at the Fairness Hearing from Therron Irvin ("Irvin") who testified that he worked with Foster at both Carolina and Consolidated Freight. (Tr. at 186). Irvin stated that Foster began work as a casual at Carolina Freight in February, 1990. (Tr. at 188). OFCCP states that this testimony is consistent with its statement in its Memorandum Concerning Entry of Consent Decree, at page 2, filed on August 30, 1993, that Foster was employed as a casual for 20 months before his hire on October 13, 1991.⁶

Additionally, OFCCP points out that Foster's employment application itself demonstrates that it is dated in error. Local 728 notes that Foster's application states that he was currently employed at Yellow Freight and Consolidated Freight. Local 728 stipulated that Foster was a permanent employee at Consolidated Freight until June 1, 1990. (Tr. at 258). Thus, if Foster was still employed at Consolidated Freight when he applied to Carolina Freight, that application was made prior to December, 1990. Based on the foregoing, I find that OFCCP has demonstrated that Foster was employed as a casual employee at Carolina Freight in February 1990.

With regard to Local 728's claim that the record is unclear whether Foster's employment was full time or casual at Yellow Freight, OFCCP properly indicates that at the time of the application, Foster was a full time employee at Consolidated Freight. (Tr. at 258). Therefore, he must have been a casual employee at Yellow Freight because an employee cannot be permanent at two signatories to the National Freight Agreement at the same time. Thus, Local 728's request for additional discovery with regards to Foster's employment at Yellow Freight is unnecessary.

In light of the arguments presented by OFCCP, I find that Foster's adjusted seniority date is adequate, fair and reasonable. This determination is based on the evidence of Foster's employment with Carolina Freight as a casual employee in February, 1990, his tenure at Consolidated Freight, and the information elicited from his employment application with respect to Yellow Freight.

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As all other provisions of the Revised Consent Decree are consistent with the Recommended Decision Remanding Consent Decree and are adequate, fair and reasonable, it is hereby ORDERED that the Revised Consent Decree is approved and shall constitute the final administrative order in this case.

JOHN M. VITTONE

Deputy Chief Judge

JMV/eca

[ENDNOTES]

The adjusted seniority dates in the Proposed Consent Decree were
as follows:

Name              Present Seniority    Adjusted Seniority
                         Date                   Date

Albert Fleetwood       10-08-91                 03-30-91
Oliver Whitfield       10-12-91                 03-31-91
Ed Foster              10-13-91                 04-01-91
Ken Barber             05-24-92                 04-02-91
J.B. Carter            05-25-92                 04-03-91
Emile Price            05-26-92                 04-04-91
Tott Griffin           10-06-91                 09-01-91

² OFCCP submitted the affidavit of Sarah K. Harper, a Paralegal Specialist in the Civil Rights Division of the U.S. Department of Labor, office of the Solicitor, to attest to OFCCP's examination of the case file. s. Harper determined whether those names on the original Complaint were working at the time that they had submitted employment applications to Carolina Freight and whether they checked full time or part time in the "would you work" portion of the application.

³Paragraph 8 of Ms. Harper's Affidavit states that, "Tott Griffin checked full time on his application. It is clear from his application that he was only working casual at Carolina Freight and not working for any other signatory. There is evidence that he turned down a job offer. It is contained in a letter to Milton Steele, Compliance Officer, OFCCP, U.S. Department of Labor, from H.M. Brawley, Senior Director of Human Resource, Carolina Freight, dated May 21, 1992."

⁴OFCCP points out that there was testimony at the fairness hearing that Mr. Foster had at one time been employed full time by another carrier, (Recommended Decision at 10; Tr. 94, 104). However, as OFCCP indicates, the parties stipulated that Mr. Foster's employment with Consolidated Freight ended on June 1, 1990 (Tr. 258). Thus, OFCCP is seeking a seniority adjustment for Mr. Foster to April 1, 1991 -- 10 months after his employment with Consolidated Freight ended and not for a period of time during which he held seniority a another carrier.

With regards to Whitfield, Barber, Price and Carter, OFCCP explains that there was no testimony suggesting that they were employed full time by another carrier. Furthermore, OFCCP explains that the employment applications of Whitfield and Carter indicate that they were not employed full time by another carrier. The employment applications of Barber and Price do not indicate whether they were employed full time by another carrier, however, they both checked "full time" on their applications for Carolina Freight.

⁵Foster was hired as a full time employee at Carolina Freight on October 13, 1991. If he desired to work full time with Carolina Freight in December, 1990 (the date that appears on his employment application), it would have only taken him approximately 10 months to become a full time employee at the company. This period is within the average time of 11 months that it took nonminorities to be hired full time at Carolina Freight. Thus, the adjusted seniority date to April 1, 1991 would appear to be unfair. However, if Foster was working as a casual at Carolina Freight in February, 1990, and was a permanent employee at Consolidated Freight until June 1, 1990 (Tr. at 258), the adjusted seniority date of April 1, 1991 - 10 months after his reason for desiring casual work at Carolina Freight - would appear to be fair and reasonable.

⁶OFCCP states that this information is verifiable by information contained in the investigatory file, but requests that the record not be reopened for additional discovery. I agree. The August 30, 1993 Memorandum filed by OFCCP, coupled with testimony elicited from Irvin by Local 728, adequately demonstrate that Foster was employed by Carolina Freight in February, 1990 as a casual employee.