[Federal Register Volume 66, Number 100 (Wednesday, May 23, 2001)]
[Notices]
[Pages 28557-28560]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-12995]


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DEPARTMENT OF LABOR

Office of Federal Contract Compliance Programs


Giant Merchandising Debarment

AGENCY: Office of Federal Contract Compliance Programs, Labor

ACTION: Notice of debarment: Giant Merchandising, 5655 Union Pacific 
Avenue, Los Angeles, California 90022.

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SUMMARY: This notice advises of the debarment of Giant Merchandising 
(hereinafter ``Giant''), as an eligible bidder on Government contracts 
or extensions or modifications of existing contracts. The debarment is 
effective immediately.

FOR FURTHER INFORMATION CONTACT: Harold M. Busch, Acting 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 April 19, 2001, pursuant to 41 CFR 60-
30.13(a), Administrative Law Judge Karst issued a Decision and order 
approving the consent Decree entered into by Giant Merchandising, 5655 
Union Pacific Avenue, Los Angeles, CA 90022 (``Giant''), and the United 
States Department of Labor, Office of Federal Contract Compliance 
Programs (OFCCP). Under the terms of the Consent Decree, Giant and any 
and all purchasers, successors, assignees, and/or transferees are 
declared ineligible for

[[Page 28558]]

the award of any future contracts funded in whole or in part with 
Federal funds and ineligible for extension or other modifications of 
any existing Government contracts. The Decision and Order is set forth 
below. The debarment from future Government contracts and subcontracts 
and the ineligibility for extensions or other modifications is 
effective immediately and shall be lifted after a fixed term of six 
months from the date of the Decision and Order approving the Consent 
Decree, provided Giant complies with the terms of this Consent Decree.

    Dated: Signed May 17th, 2001, Washington, DC.
Harold M. Busch,
Acting Deputy Assistant Secretary for Federal Contract Compliance.

Department of Labor, Office of Administrative Law Judges, San 
Francisco, CA

[Case No. 2001-OFC-2]

Issue date: April 19, 2001.

In the Matter of: Office of Federal Contract Compliance Programs, 
Department of Labor, Plaintiff, vs. Giant Merchandising, Defendant

Decision and Order Approving Consent Decree
    The parties filed an executed Consent Decree, a copy of which is 
attached on April 17, 2001. Review of the Consent Decree shows that it 
is in compliance with 41 CFR 60-30.13 and that it fairly and adequately 
resolves all pending issues for this matter.
    Accordingly, the Consent Decree is hereby Approved. Such Consent 
Decree constitutes my findings of fact and conclusions of law and 
constitutes full, final, and complete adjudication of this matter.
Alexander Karst,
Administrative Law Judge. 
    A copy of the above named document was sent to the following:
Patricia Winkler, Human Resources Manager, Giant Merchandising, 5655 
Union Pacific Avenue, Los Angeles, CA 90022
Matthew Halpern, Esq., Jackson Lewis Schnitzler & Krupman, 1000 
Woodbury Road, Suite 402, Woodbury, NY 11797
Gerald M. Levin, Chairman & CEO, Time Warner, Inc., 75 Rockefeller 
Plaza, New York, NY 10019
Michelle Serrou, Office of the Solicitor-Div. of Civil Rights, U.S. 
Department of Labor, Room N-2464, 200 Constitution Ave., NW., 
Washington, DC 20210
Solicitor of Labor, U.S. Department of Labor, Office of the Solicitor, 
Room S-2002, FPB, 200 Constitution Ave., NW., Washington, DC 20210
Special Counsel to the Assistant Secretary of Labor, U.S. Department of 
Labor, Employment & Training Administration, 200 Constitution Ave., 
NW., Rm. N-4671, Washington, DC 20210
Offc of Fed. Contract Compliance Programs, U.S. Department of Labor, 
Room C-3325, 200 Constitution Ave., NW., Washington, DC 20210
Associate Solicitor-Civil Rights Division, U.S. Department of Labor, 
Room N-2464, 200 Constitution Ave., NW., Washington, DC 20210
Daniel Teehan, Regional Solicitor, U.S. Department of Labor, 71 
Stevenson Street, Suite 1110, San Francisco, CA 94105
Vivian Chan,
Legal Technician. 

Office of Administrative Law Judges

Department of Labor, Office of Federal Contract Compliance Programs, 
Plaintiff, v. Giant Merchandising, Defendant

[Case No. 01-OFC-2]

Consent Decree

    This Consent Decree is entered into between the Plaintiff, United 
States Department of Labor, Office of Federal Contract Compliance 
Programs (hereinafter ``OFCCP'') and Defendant, Giant Merchandising 
(hereinafter ``Giant'') in complete resolution of the Administrative 
Complaint filed in this matter. The Complaint was filed by OFCCP 
against Giant alleging violations of Executive Order 11246 (30 FR 
12319), as amended by Executive Order 11375 (32 FR 14303) and Executive 
Order 12086 (43 FR 46501) (hereinafter ``Executive Order''); Section 
503 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. 793 
(hereinafter ``Section 503''); and the Vietnam Era Veterans' 
Readjustment Assistance Act of 1974, as amended, 38 U.S.C. 4212 
(hereinafter ``VEVRAA'').
    In the Administrative Complaint, OFCCP alleged that Giant violated 
its contractual obligations under Executive Order 11246, section 503, 
and VEVRAA by failing to submit to OFCCP information requested in a 
survey document bearing OMB Control Number 1215-0196 (``the Equal 
Opportunity Survey'' or ``EO Survey''). The EO Survey requested 
information relating to personnel activity at Giant's facility located 
in Commerce, California (hereinafter ``Commerce facility'').
    In its Answer, Giant denied that the Company had violated the 
Executive Order, Section 503 and VEVRAA and asserted that the cited 
laws and/or regulations did not apply to the Defendant at the time that 
it was asked to respond to the EO Survey.

Part A--Jurisdiction and Procedural History

    1. The Office of Administrative Law Judges has jurisdiction over 
this action pursuant to sections 208 and 209 of Executive Order 11246, 
41 CFR 60-1.26, 41 CFR Part 60-30; section 503, 41 CFR 60-741.65; 
VEVRAA and 41 CFR 60-250.29.
    2. This matter was brought by OFCCP to enforce the contractual 
obligations imposed by the Executive Order, section 503 and VEVRAA and 
the regulations issued pursuant thereto. The Administrative Complaint 
invoked the expedited OFCCP hearing procedures, 41 CFR 60-30.31, et 
seq.
    3. In its Complaint, OFCCP alleged that Giant had refused to give 
OFCCP access to or to supply it with records or other information as 
required by the equal opportunity clause; specifically, it alleged that 
Giant had failed and refused to complete the EO Survey mailed to Giant 
by OFCCP and received by Giant on April 28, 2000. The EO Survey 
required Defendant to furnish to OFCCP, within 30 days from the date of 
receipt, certain information relating to personnel activity at the 
Commerce facility.
    4. In its Answer, Giant contended that the Executive Order, section 
503 and VEVRAA did not apply at the time that Giant was asked to 
respond to the EO Survey and, therefore, Giant had no obligation under 
the applicable laws and regulations to supply OFCCP with the 
information it had requested. Giant further denied that it was 
obligated to complete the EO Survey and averred that it submitted the 
EO Survey on January 31, 2000.
    5. Giant denies that it violated Executive Order 11246, section 503 
and VEVRAA.
    6. Giant does not admit any violation of law or other obligation. 
The parties agree that this Consent Decree is not, and may not be used, 
as a admission of any violation by Giant, or as a basis for asserting 
Giant's noncompliance with any labor and employment laws, rules or 
regulations.
    7. Giant is a joint venture between Warner Bros. Records Inc., and 
Warner Music GM Merchandising Inc., and is headquartered in Commerce, 
California. Giant is engaged in the business of manufacturing, 
printing, and distributing commercial art and graphic design in the 
form of silk-screened tee-shirts and other wearables.

[[Page 28559]]

    8. At all times pertinent to this matter, OFCCP has alleged that 
Giant had a Government contract of $50,000 or more, and had 50 or more 
employees. Giant denied that it had a Government contract of $50,000 or 
more at the time OFCCP sought submission of the EO Survey.
    9. At all times pertinent to this matter, Giant maintained and 
operated the Commerce facility located at 5655 Union Pacific Avenue, 
Commerce, California 90022.
    10. Giant has never obtained a waiver of coverage from the Deputy 
Assistant Secretary for Federal contract Compliance for its Commerce 
Facility.
    11. The EO Survey received by Giant, on April 28, 2000, sought from 
Giant information relating to its current personnel practices. This 
information is of the type that Federal contractors are required to 
maintain. 41 CFR 60-1.12; 41 CFR 60-250.52 41 CFR 60-740.80.
    12. OFCCP contended, in this action, that Giant was required to 
respond to the EO Survey within 30 days from the date of receipt, i.e., 
on or before May 28, 2000. Giant denied that it was required to do so.
    13. Giant did not complete the EO Survey for its Commerce facility 
by May 28, 2000.
    14. By letter dated June 22, 2000, Shirley J. Wilcher, Deputy 
Assistant Secretary for Federal Contract Compliance, U.S. Department of 
Labor, sent, by certified mail a Notice to Show Cause within 30 days 
why Giant's non-submission of the EO Survey should not be deemed a 
violation of the Executive Order, and why defendant should not be 
subject to the sanctions provided by law and regulation for such a 
violation. The Notice to Show Cause was accompanied by a second copy of 
the EO survey.
    15. On August 1, 2000, a letter dated May 22, 2000, was faxed to 
OFCCP by Patricia Winkler, Human Resources Manager for Giant. In the 
May 22, 2000 letter, Jesse L. Atilano, President and CEO of Labor Law, 
requested an exemption for Giant based on the assertion that Giant did 
not have sales exceeding the ``statutory dollar amount'' of 
$500,000.00. On August 16, 2000, OFCCP contacted Mr. Atilano to inform 
him that the threshold dollar amount which creates in Government 
contractors the duty to prepare and maintain a written Affirmative 
Action Program is $50,000. Mr. Atilano stated that he did not believe 
that Giant was a Federal contractor but that he needed to confirm the 
dollar amount of Giant's contracts.
    16. On January 12, 2001, the Administrative Complaint was filed in 
this matter.
    17. On January 31, 2001, Giant provided to OFCCP a complete 
response to the EO Survey at issue in this case.

Part B--General Provisions

    18. The record that is the basis for this Consent Decree consists 
of the Administrative Complaint, Answer and the Consent Decree 
including attachments thereto.
    19. This Consent Decree shall not become final until it has been 
signed by the Administrative Law Judge. The Effective Date of the 
Decree shall be the date on which it is signed by the Administrative 
Law Judge.
    20. This Consent Decree shall be binding upon Giant, 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.
    21. The parties waive all further procedural steps to contest the 
binding effect of the Consent Decree, and any right to challenge or 
contest the obligations entered into pursuant to this Decree. Pursuant 
to 41 CFR 60-30.13, an Order by the Administrative Law Judge accepting 
this Consent Decree shall constitute the final administrative order in 
this matter.
    22. Subject to the performance by Giant of all duties and 
obligations contained in this Consent Decree, all alleged violations 
identified or which could have been identified in the Administrative 
Complaint shall be deemed fully resolved. However, nothing herein is 
intended to relieve Giant form compliance with the requirements of the 
Executive Order, section 503 and VEVRAA or the regulations promulgated 
pursuant thereto, or to limit OFCCP's right to review Giant's 
compliance with such requirements.
    23. Giant agrees that there shall be no retaliation of any kind 
against any person who has provided information or assistance 
concerning this Decree.

Part C--Specific Provisions

    24. Giant agrees to a fixed-term debarment of six months during 
which Giant will not be eligible to receive future contracts or 
modifications or extensions of existing contracts. The six month 
debarment will commence on the Effective Date of this Decree. The 
Deputy Assistant Secretary will grant reinstatement, pursuant to 41 CFR 
60-1.31, if Giant complies with the terms of this Decree. No additional 
proceedings before the Office of Administrative Law Judges are 
necessary for Giant to be reinstated.

Part D--Implementation and Enforcement of the Decree

    25. Jurisdiction, including the authority to issue any additional 
orders or decrees necessary to effectuate the implantation of the 
provisions of this Consent Decree, is retained by the Office of 
Administrative Law Judges for one year form the Effective Date of this 
Decree.
    26. If at any time after the Effective Date of this Decree, OFCCP 
believes that Giant has violated any portion of this Consent Decree, 
Giant 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. The notification will provide Giant 
with 15 calendar days to respond in writing except where OFCCP alleges 
that such a delay would result in irreparable injury.
    27. Enforcement proceedings for violation of this Consent Decree 
may be initiated at any time after the 15 days referred to in paragraph 
26 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 related solely 
to the factual and legal claims make in the motion and Giant's defense 
thereto.
    28. Liability for violation of this Consent Decree shall subject 
Giant to sanctions set forth in the Executive Order, section 503 and 
VEVRAA and their implementing regulations, including contract 
cancellation and/or debarment, and the appropriate relief.
    29. 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 OFCCP and Giant, 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 20 
calendar days of receipt. The Office of Administrative Law Judges may, 
if it deems it appropriate, schedule a hearing on the application or 
motion.
    30. The Agreement herein set forth is hereby approved and shall 
constitute the Final Administrative Order in this case.
Agreed and Consented To:
On Behalf of the Defendant, Giant Merchandising:
Date: April 13, 2001.
Matthew B. Halpern,
Jackson, Lewis, Schnitzler & Krupman, 1000 Woodbury Road, Suite 402, 
Woodbury, NY 11797
On Behalf of the Plaintiff, U.S. Department of Labor, Office of 
Federal Contract Compliance Programs:

[[Page 28560]]

Judith E. Kramer,
Acting Solicitor of Labor.
Gary M. Buff, Associate Solicitor.
Debra A. Millenson,
Senior Trial Attorney.
Michelle Serrou
Attorney, Department of Labor, Office of the Solicitor, Civil Rights 
Division.
[FR Doc. 01-12995 Filed 5-22-01; 8:45 am]
BILLING CODE 4510-27-M