1 NationsBank and Bank of America (BOA) merged after the filing of the complaint in this case. Therefore, this decision refers to the bank as either NationsBank or BOA.
2 OFCCP had decided as early as 1991 to conduct corporate management reviews. See Deposition of Harold M. Busch, April 15, 1997, Exhibit K at 54.
3 Deavers did not recall the source of the list (a computer printout of contractors with corporate headquarters in his district) but assumed it was an internal OFCCP document. Exhibit F at 31-32.
4 Harold Busch, whose position is not identified in this record (but who is identified in Beverly Enterprises, Inc. v. Herman, 130 F. Supp. 2d 1, 10 (D.D.C. 2000), as the OFCCP National Office Director of program management), testified in his deposition that companies selected for corporate management reviews had to have at least 4,000 employees and be on the Fortune 1000 list. Exhibit K at 53.
5 Before the Board, OFCCP did not argue, as it did before the ALJ, that the search was justified because it was conducted pursuant to the plan containing neutral criteria.
6 OFCCP argues only that BOA gave contemporaneous consent to the search.
7 Although Gaudin allegedly made her statement about banks in 1994, Cooley did not execute his affidavit, and BOA did not amend its complaint to challenge the review of the Charlotte office, unti1 1997.
8 The ALJ used the terms "summary decision" and "summary judgment" interchangeably; the ALJ Rules of Practice, 29 C.F.R. § 18, use the term "summary decision," but the applicable standard is the same as in the OFCCP Rules of Practice, compare 41 C.F.R. § 60-30.23(e) with 29 C.F.R. § 18.40(d), and we will use the terms in the OFCCP Rules.
9 This case consolidated consideration of two cases involving proposed searches of companies doing business with the federal government, New Orleans Public Service, Inc. (NOPSI) and Mississippi Power and Light (MP&L). Unlike the instant case, the companies in MP&L did not contractually agree to be subject to investigations of their compliance with the Executive Order. The Fifth Circuit initially considered whether there could be implied consent to waive Fourth Amendment rights, based on the companies' conduct in furnishing services to the government. However, it concluded it did not need to reach that question because it found that the regulatory scheme for the Executive Order inspection process met Fourth Amendment requirements.
10 The court remanded the cases for determinations as to whether these constitutional requirements were met. In a subsequent case, United States v. New Orleans Pub. Serv., Inc., 723 F.2d 422 (5th Cir. 1984) (NOPSI III), it held that NOPSI was not selected for review pursuant to neutral criteria. The MP&Llitigation concluded when the District Court, on remand, found that OFCCP had developed an administrative plan with neutral criteria but it was not followed in selecting MP&L for review. United States v. Mississippi Power and Light Company, 33 Fair Empl. Prac. Co. (BNA) 1356, 1360 (S.D. Miss. 1984).
11 BOA has also cited to us Donovan v. A. A. Beiro Const. Co., 746 F.2d 894 (D.C. Cir.1984), in which a construction company, after initially objecting to and preventing an OSHA inspection of the portion of a construction site on which it was working, did not resist after OSHA inspectors returned and claimed authority to inspect based on consent from the site's owner. The D.C. Circuit's statements regarding Beiro's consent to the inspection while interesting, are dicta. The court's holding was that Beiro had no expectation of privacy in the common and open areas of the site (and therefore citations relating to those areas and to what could be seen in plain view were lawful), and that the ALJ's decision dismissing (based on language in the pertinent regulation) OSHA's citations relating to flammable items stored in Beiro's tool trailer, was supported by substantial evidence.
12 BOA admitted in its answers to OFCCP's interrogatories that it was a depository of government funds and an issuing and paying agent for United States savings bonds and that it was a covered government contractor.
13See also Beverly Enterprises, Inc. v. Herman, 130 F. Supp. 2d 1, 14 (D.D.C. 2000) ("Executive Order 11,246, which requires companies that contract with the federal government to maintain an affirmative action program, has been widely held to authorize administrative searches to confirm compliance with its mandates.").
14 The government had argued that the bank waived any Fourth Amendment right to object to a compliance review by signing contracts in which it agreed to accept the obligations of the Executive Order. The court found, nonetheless, that the government did not controvert the bank's assertion that it had consented only to reviews which employ reasonable searches under the Fourth Amendment. It stated that, in any event, it would not be inclined to read the contract otherwise. 692 F.2d at 719.
15 The bank did not dispute the government's contention that DOL's plan was neutral on its face.
16 The bank contended that the plan was not neutral because the government had selected it even though it had previously been reviewed. The court found that there were factors present which made the decision to continue with the investigation sufficiently reasonable to meet constitutional requirements. 692 F.2d at 722.
17United States v. New Orleans Pub. Serv., Inc., 723 F.2d 422 (5th Cir. 1984) (NOPSI III); United States v. Mississippi Power & Light., 638 F.2d 899 (5th Cir.) (NOPSI II); and United States v. New Orleans Pub. Serv., Inc., 553 F.2d 459 (5th Cir.) (NOPSI I) rehearing denied, 559 F.2d 30 (1977), vacated, New Orleans Pub. Serv., Inc. v. United States, 436 U.S. 942 (1978).
18 The court in Beverly applied the requirement for a plan with neutral criteria to the Executive Order compliance review without discussing the effect of prior contractual consent.
19 We consider only contemporaneous consent, since OFCCP has not raised BOA's contractual consent.
20 OFCCP asserts that bank officials cooperated fully in the conduct of the review.
21 Moreover, BOA's argument that its consent was not voluntary rests on the assumption that OFCCP did not proceed pursuant to a plan with neutral criteria. Our remand on the issue of whether there was a plan with neutral criteria issue (see analysis below) removes the assumption and thereby eliminates the basis for BOA's argument at this time.
22 The actual behavior and communications between OFCCP's and BOA's employees would be highly relevant. Evidence clarifying the nature and extent of contacts between the parties at each step prior to, and at the time of, the compliance review, e.g., correspondence, and telephone and in-person conversations between the Bank and OFCCP personnel related to the subject of compliance reviews, as well as what actually happened when the on-site review was conducted at the Charlotte facility, would be particularly germane.
23 Although OFCCP has not specifically filed exceptions to this aspect of the ALJ's recommendations, the ARB has the power to review the record and reach its own conclusions. Under the Administrative Procedure Act, "[o]n appeal from or review of the initial decision, the agency has all the powers which it would have in making the initial decision except as it may limit the issues on notice or by rule." 5 U.S.C. § 557(b) (2000). On review of an initial decision an agency has the authority to either adopt or reject an ALJ's findings and conclusions and also may reach its own conclusions from the record independent from those of the ALJ. See Starrett v. Special Counsel, 792 F.2d 1246, 1252 (4th Cir. 1986); NLRB v. Stocker Mfg., 185 F.2d 451, 453-54 (3d Cir. 1950); Containerfreight Transp. Co. v. I. C. C., 651 F.2d 668, 670 (9th Cir. 1981); Union Mechling Corp. v. United States, 390 F. Supp. 411, 419 (W.D. Pa.1974) (3-judge court).
24 The record does not establish that Geathers was specifically qualified to provide definitive testimony on the relationship between the EEDS and corporate management reviews; however, his testimony is sufficient to raise a question.
25 In determining that BOA's assertion concerning the exclusive nature of the EEDS Manual cannot be accepted as fact, we do not make an affirmative finding to the contrary.
26 We also note that the ALJ's acceptance of the 1995 Policy Alert, issued in April 1995, as establishing the exclusivity of EEDS procedures in November 1993, went beyond the evidence. The existence of a 1995 memorandum which referenced the 1992 Manual was an insufficient basis from which to infer that the 1992 Manual's procedures were required in November 1993 and that they were exclusive (particularly where the 1995 memorandum is a "reminder," suggesting that the continuous application of the EEDS Manual from 1992 through 1995 may not have been a given).
27 It is unclear whether this modification occurred before or after the list and criteria were given to Deavers.
28But see discussion above of agency discretion in the adherence to internal guidelines.
29 Such a challenge to this additional criterion sounds more appropriately under the APA than under the Fourth Amendment, and in any event, is questionable for the reasons discussed above.
30 It appears that none of the other companies on the Charlotte list were located in Mecklenberg County, the only other area referenced by Geathers. In any event, the inclusion of even all of the other cities on the Charlotte list would have brought the number of companies up to a maximum of 13. There was no evidence in the record that Geathers included cities on the Raleigh or Columbia, lists locations which BOA included in arriving at its assertion (adopted by the ALJ) that at least 20 companies would have qualified for review. The ALJ thus substituted BOA's suggested criteria for the criteria OFCCP said it used. We find no basis for doing so. We take notice that companies on the lists included by BOA were located a significant distance from Charlotte, for example, Greenville, South Carolina is over 100 Miles from Charlotte, and Raleigh is 170 miles.
31 Although there are some variations in OFCCP officials' descriptions of the criteria, it is not apparent from the face of the record that the differences are significant.
32 We also cannot agree with the ALJ that Gaudin's comment about the affirmative action record of banks is proof of bias or arbitrary selection. The record does not demonstrate that Gaudin's views, expressed in a conversation more than a year after the selection of the Charlotte office, entered into the process used for that selection. Being a bank was not a selection factor listed by OFCCP. Moreover, as the court noted in Beverly Enterprises, "targeting an industry is not a non-neutral factor." 130 F. Supp. 2d at 16 n.9.