USDOL/OALJ Reporter
CCASE_NAME:
OFCCP v. UNIVERSITY OF NORTH CAROLINA
CCASE_NO:
84-OFC-20
DDATE:
19870127
TTITLE:
NOTICE AND ORDER
TTEXT:
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U.S. DEPARTMENT OF LABOR
SECRETARY OF LABOR
WASHINGTON,D.C.
DATE: January 27, 1987
CASE NO.: 84-OFC-20
IN THE MATTER OF
OFFICE OF FEDERAL CONTRACT
COMPLIANCE PROGRAMS,
Plaintiff
v.
UNIVERSITY OF NORTH CAROLINA (UNC),
Defendant.
BEFORE: THE SECRETARY OF LABOR
NOTICE AND ORDER CONCERNING REVIEW OF THE
CASE AND ISSUANCE OF FINAL DECISION
This case involves alleged violations under Executive Order
No. 11,246, as amended, Section 503 of the Rehabilitation Act of
1973, as amended, 29 U.S.C. [[ SS line 18 ]] 793 (1982), and
Section 402 of the Vietnam Era Veterans Readjustment Assistance Act,
32 U.S.C. [[ SS line 19 ]] 2012 (1982). In order to avoid having
two final administrative orders in this case, one by the Secretary
relating to the Executive Order allegations, and another by the
Deputy Under Secretary for Employment Standards concerning the
other allegations, I have informed the Deputy Under Secretary by means
of a withdrawal of delegation (copy appended) that I shall decide all
aspects of this case under all three aforementioned laws.
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The record has been submitted to me with the Administrative
Law Judge's (ALJ) recommended decision and order of December 12,
1986. I note that although this case was originally filed under
the expedited hearing procedures, 41 C.F.R. [[ SS page 2 line 4 ]]
60-30.31 - 30.37 (1986), neither the parties nor the three
Administrative Law Judges handling the case have treated it as an
expedited case or complied with those procedures.
The complaint in this case was filed on July 20, 1984.
Under the expedited procedures, a hearing was required to be
held within 45 days of receipt of a request for a hearing. 41
C.F.R. [[ SS page 2 line 11 ]] 60-30.32(d). Defendant University of
North Carolina (UNC) made a motion on August 6, 1984, that the full
hearing procedures in 41 C.F.R. [[ SS-SS page 2 line 13 ]] 60-30.1
- 30.30 be applied to this case. This motion was not ruled upon until
January 25, 1985, when it was denied by ALJ Everette E. Thomas.
ALJ Thomas granted UNC 20 days to file an answer, a pleading which was
due 20 days after service of the complaint under the expedited
procedures. 41 C.F.R. [[ SS page 2 line 18 ]] 60-30.32(b). The
answer was filed on February 13, 1985, and received by the Office of
Administrative Law Judges on February 15, 1985. UNC renewed its
motion for application of the full hearing procedures to the case on
arch 13, 1985. Both parties moved for leave to take depositions.
41 C.F.R. [[ SS page 2 line 22 ]] 60-30.33. The deposition motions
were granted on April 30, 1985, but no hearing date was set, and no
date for completing depositions was set.
On December 18, 1985, ALJ David A. Clarke, Jr., issued a
Notice of Hearing and Prehearing Order setting the hearing for
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February 24, 1986. Despite the fact that this matter had been
pending for more than 18 months, on January 31, 1986, ALJ Clarke
denied UNC's renewed motion to apply the full hearing procedures,
but he noted that "[i]t is apparent from the record that this
case has not been expedited." He then set a briefing schedule
and a schedule for completion of discovery, exchange of witness
and exhibit lists, and submission of a status report, which
extended to April 25, 1986. The ALJ rescheduled the hearing
for May 20, 1986, but that date was later cancelled.
Plaintiff Office of Federal Contract Compliance Programs
(OFCCP) filed a Motion for Summary Judgment on November 10,
1986. ALJ Theodor P. Von Brand issued his Recommended Decision
and Order (R.D. and O.) on December 12, 1986.
It is clear from the foregoing outline of the procedural
history of this case that no one connected with it has complied
with the expedited hearing procedures or treated the case as
though it were entitled to expedited handling. Indeed, OFCCP's
otion for Summary Judgment was explicitly filed pursuant to
41 C.F.R. [[ SS page 3 line 19 ]] 60-30.23 of the regular hearing
procedures.
Following issuance of the ALJ's R.D. and O. on December 12,
1986, Defendant filed exceptions to the decision, purportedly
under [[ SS page 3 line 22 ]] 60-30.36 of the expedited hearing
proceedings. Defendant's exceptions were submitted on January 12,
1987, well past the 10-day time period for filing exceptions under
the expedited procedures. Defendant's exceptions were accompanied by
a motion for an enlargement of time to file its exceptions and
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a brief. The motion states that defendant's counsel relied
upon the postponed regulations in 41 C.F.R. Chapter 60 in the
appendix of C.F.R. Volume 41, and thus missed the regulations
at 41 C.F.R. [[ SS page 4 line 5 ]] 60-30.36. Defendant states
that "the prolonged history of the case indicates that the plaintiff
will not suffer any prejudice and justice will best be served if the
defendant [is] permitted to file its exceptions . . . out of time."
I agree that considering the history of this proceeding, the
parties will not be prejudiced and the Secretary's consideration
of the case will be aided by full consideration of the issues and
the parties' respective arguments. UNC's motion for an enlargement
of time, therefore, IS GRANTED. 41 C.F.R. [[ SS page 4 line 12 ]]
60-30.15(i).
Accordingly, I will treat this case as a case pending
under the regular hearing procedures, specifically 41 C.F.R.
[[ SS SS page 4 line 15 ]] 60-30.26 - 30.30. I will review the
ALJ's Recommended Decision and the record pursuant to those regulations.
Thus, no action may be taken to suspend or terminate government
contracts with UNC or to pass over UNC for government contracts based
on any alleged non-compliance with Executive Order No. 11,246, Section
503 of the Rehabilitation Act or Section 402 of the Vietnam Era
Veterans Readjustment Assistance Act at the University of North
Carolina-Asheville or the North Carolina School of the Arts.
Defendant's exceptions ARE ACCEPTED and UNC IS GRANTED
10 days from the date of receipt of this order in which to file
a brief in support of its exceptions. Plaintiff may have 14 days
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from receipt of UNC's brief in support of its exceptions to
respond to the exceptions and brief
SO ORDERED.
________________________
Secretary of Labor
Washington, D.C.
