§ 793(a). The WMATA court found this quoted language "quite plain," and held that the Department's waiver regulation was inconsistent and could not be used to sweep in all employees of the contractor. 55 EPD at 65,560. Accordingly, the court concluded that coverage did not extend to an applicant for a carpenter position where the employer's government contract was to provide certain shuttle bus services. Id.

    The Department dismissed its appeal of WMATA and the Assistant Secretary agreed that the decision set forth a new "working-on-the-contract" standard that significantly changed existing law. See OFCCP v. Yellow Freight Sys., Inc., Case No. 79-OFCCP-7, Aug. 24, 1992; OFCCP v. Rowan Cos., Inc., Case No. 89-OFC-41, May 28, 1992; see also OFCCP v. Norfolk Southern Corp., Case No. 89-OFC-31, Oct. 3, 1995, slip op. at 4-5, and cases cited therein; OFCCP v. CSX Transp. Inc., Case No. 88-OFC-24, Oct. 13, 1994, slip op. at 26-29. Since the record in this case did not contain evidence meeting the WMATA standard, the case was remanded to the Administrative Law Judge (ALJ) for development of evidence and findings on the working-on-the-contract issue. See Decision and Order of Remand dated December 21, 1994.

    On remand the parties engaged in discovery and offered numerous affidavits. By Recommended Decision and Order (R. D. and O.) dated July 20, 1995, the ALJ granted Keebler's motion to dismiss for failure to meet the WMATA standard. OFCCP filed exceptions and Keebler filed a response. Upon review, we deny OFCCP's exceptions and accept the ALJ's recommended decision as modified below.

    We note that the court's decision in WMATA was legislatively overturned by Pub. L. 102-569, § 505(a), 106 Stat. 4427 (1992), which amended Section 503 by striking the working-on-the-contract limitation. See 29 U.S.C. § 793(a) (Supp. V 1993). Therefore, this case, arising before Congress invalidated the "working-on-the-contract" provision, but pending at the time the court in WMATA invalidated the waiver regulation, is in a unique posture.

    DeAngelis was a production attendant at Keebler's Raleigh, North Carolina facility from January 7, 1985 through April 16, 1985. She helped produce a snack food called Tato Skins. The Tato Skins were not earmarked or designated for particular destinations but were shipped to between 65 and 70 distribution centers. Exhibit E at 11-12, 16. Another Keebler facility located in Bluffton, Indiana also produced and shipped Tato Skins to the distribution centers. The distribution centers then filled orders placed by customers, including the government. During the

period of DeAngelis' employment, Keebler had several government contracts under which it provided Tato Skins to military bases and commissaries. R. D. and O. at 5.

    The ALJ found that OFCCP failed to meet its burden of proof. Noting that discovery and the production of evidence were hampered by the passage of time, he found the record insufficient to show that the Tato Skins used to fill the government contracts were produced either at the Raleigh facility or the Bluffton facility or both. He explained that while the possibility existed that those Tato Skins were produced at DeAngelis' Raleigh facility, a finding to that effect would be conjectural. R. D. and O. at 5-6. The ALJ rejected OFCCP's argument that the determination of who is employed by a contractor to carry out a government contract should be based on job categories, and that in this case coverage should therefore extend to all production attendants at both the Raleigh and Bluffton facilities. He found that accepting OFCCP's argument would improperly place the burden on Keebler and, as a practical matter by lumping together employees of the two facilities, would reinstitute the underlying rationale of the waiver rule held invalid by WMATA. R. D. and O. at 6. We agree.

    The Act, prior to the 1992 amendments, was worded narrowly to require affirmative action with respect to persons or individuals employed to carry out the contract. To establish coverage of the individual complainant, OFCCP must prove by a preponderance of the evidence that the individual was working or would have worked on a government contract absent the discriminatory act. Here, the evidence establishes only that DeAngelis had a randomly equal chance, the same as all production attendants from both facilities, to have worked on the Tato Skins used to fill Keebler's government contracts. R. D. and O. at 6; see OFCCP's Brief at 9, 17, 21. Such a showing is not sufficient to carry OFCCP's burden of proof.

    OFCCP charges that because of Keebler's distribution system, it would have been impossible at any time to demonstrate that DeAngelis or the Raleigh plant worked on Tato Skins that fulfilled a government contract. The evidence, however, shows that during the relevant time period products could be traced back to the manufacturing facility. Doan W. Edmonston testified that as the Raleigh plant manager, he occasionally received complaints from the corporate office about foreign objects in the products. Exhibit E at 17. The corporate office could identify and distinguish the facility by the location code and date stamped on the packaging. Id. at 18. Contrary to OFCCP's argument, its proof failed not because Keebler did not separate its production attendants and commingled packages of Tato Skins at the distribution center, but because invoices, corporate records, and packages containing location and date codes were no longer available when this discovery was conducted. See, e.g., Exhibits B and C; R. D.

    Accordingly, the complaint IS DISMISSED.

SO ORDERED.

DAVID A. O'BRIEN

Chair

KARL J. SANDSTROM

Member

JOYCE D. MILLER

Alternate Member