OFCCP v. PPG Industries, Inc., 86-OFC-9 (ARB June 20, 1996)

U.S. Department of Labor      Administrative Review Board
                              200 Constitution Avenue, N.W.
                              Washington, D.C.  20210


In the Matter of:

OFFICE OF FEDERAL CONTRACT         CASE NO.  86-OFC-9
COMPLIANCE PROGRAMS, UNITED        DATE:     June 20, 1996
STATES DEPARTMENT OF LABOR,
          PLAINTIFF,

     and

JAMES W. THOMPSON
          INTERVENOR,

     v.

PPG INDUSTRIES, INC.,
          DEFENDANT.

BEFORE:   THE ADMINISTRATIVE REVIEW BOARD[1]


                      ORDER OF REMAND

     On February 20, 1989, PPG Industries, Inc. (PPG) filed
motion to stay implementation of the January 9, 1989, Final
Decision and Remand Order on Remedy (Remand Order) in this case
to give it an opportunity to obtain judicial review of the Remand
Order.  PPG then sought review of the Department's decision in
district court under the APA, requesting, inter alia, a
declaration that the waiver regulation under which OFCCP relied
in asserting jurisdiction was invalid.  While the parties' cross-
motions for summary judgement were pending, in Washington
Metro. Area Transit Auth. v. DeArment, 55 Empl. Prac. Dec.
Par. 40,507 (D.D.C. Jan. 3, 1991)(WMATA), holding that the
waiver regulation impermissibly extended that original statute's
coverage beyond those employees hired to "carry out" the federal
contract.  Id. at 65,560.

     After determining it would not appeal the WMATA decision,
the Department of Labor filed a motion for remand in this case,
to allow OFCCP the opportunity to establish proof, following the
WMATA decision, that Thompson would have worked on a
covered federal contract or subcontract.  The district court
denied the motion for remand and granted PPG's motion for summary
judgment on the jurisdictional issue.  The Department of Labor
appealed to the U.S. Court of Appeals for the D.C. Circuit.  On
April 21, 1995, the court handed down a decision reversing the
district court with instructions to remand the case to the
Department of Labor for further proceedings.  On June 23, 1995,
the district court remanded the case to the Department for action
consistent with the decision of the Court of Appeals.

     The parties have now requested that a settlement judge be
appointed.  We REMAND the case to the Chief Administrative Law 
Judge for the appointment of a settlement judge.

     SO ORDERED.


                              DAVID A. O'BRIEN
                              Chair

                              KARL J. SANDSTROM
                              Member

                              JOYCE D. MILLER
                              Alternate Member


[ENDNOTES]

[1]  This is matter was originally filed before the Assistant
Secretary for Employment Standards pursuant to the Rehabilitation
Act of 1973, as amended, 29 U.S.C.  793 (1988).  On April 17,
1996, a Secretary's Order was signed delegating authority to
issue final agency decisions under this statute and the
implementing regulations, 41 C.F.R. part 60-741 (1988) to the
newly created Administrative Review Board.  Secretary's Order 2-
96, Apr. 17, 1996, 61 Fed. Reg. 19978, May 3, 1996 (copy
attached).

     Secretary's Order 2-96 contains a comprehensive list of the
statutes, executive orders, and regulations under which the
Administrative Review Board now issues final agency decisions.  A
copy of the final procedural revisions to the regulations, 61
Fed. Reg. 19982, implementing this reorganization is also
attached.