OFCCP v. U.S. Airways, Inc., ARB No. 02-063, ALJ No. 1988-OFC-17 (ARB Sept. 18, 2002)

U.S. Department of Labor

Administrative Review Board 200 Constitution Avenue, N.W. Washington, D.C. 20210

ARB CASE NO. 02-063
ALJ CASE NO. 88-OFC-17
DATE: September 18, 2002

In the Matter of:

UNITED STATES DEPARTMENT OF LABOR, OFFICE OF FEDERAL CONTRACT COMPLIANCE PROGRAMS,
   PLAINTIFF,

    v.

US. AIRWAYS, INC.,
   DEFENDANT,

   and

ASSOCIATION OF FLIGHT ATTENDANTS,

   and

AIR LINE PILOTS' ASSOCIATION,
   INTERVENERS.

BEFORE: THE ADMINISTRATIVE REVIEW BOARD¹

Appearances:

For the Plaintiff:
   Michelle Serrou, Esq., Beverly Dankowitz, Esq., Gary M. Buff, Esq., Eugene Scalia, Esq., U.S. Department of Labor, Washington, D.C.

For the Defendant:
   Tom Jerman, Esq., Evelyn L. Becker, Esq., O'Melveny & Meyers, LLP, Washington, D.C.

For the Interveners:
    Clay Warner, Esq., James K. Lobsenz, Esq., Air Line Pilots' Association, International, Washington, D.C.

   On April 15, 1988, the Department of Labor's Office of Federal Contract Compliance ("OFCCP") filed a complaint against Piedmont Airlines, later U.S. Airways,² alleging that Piedmont discriminated against applicants for pilot and flight attendant positions on the basis of race and national origin. Order Recommending Denial of Supplemental Consent Decree (O. R. D.) at 2.³ The Airline Pilots' Association ("ALPA") intervened. Id. OFCCP and U.S. Airways submitted a proposed consent decree to a Department of Labor Administrative Law Judge pursuant to 41 C.F.R. § 60-30.13. Id. ALPA objected to the proposed consent decree on the grounds that it provided for an "adjusted seniority date" to determine furlough. Id. Such adjusted dates, ALPA argued, were inconsistent with the collective bargaining agreement and would directly affect its members because in the event of a furlough, the Defendant would not furlough pilots according to the established seniority order. Id. The ALJ dismissed ALPA's objections and issued a Recommended Order Approving Consent Decree (R. O.). Id. None of the parties filed exceptions to the R. O., and the Secretary of Labor adopted the ALJ's recommendation and approved the consent decree. OFCCP v. USAIR Inc., No. 88-OFC-17 (Sec'y June 30, 1992).⁴

   Six years later, when U.S. Airways began hiring new pilots, subject to the terms of the consent decree, disagreements arose between OFCCP and U.S. Airways as to the proper application of the terms of the consent decree to the hiring process. O. R. D. at 2. Ultimately, these disagreements were resolved, as indicated in a Supplemental Consent Decree, which they presented to an ALJ for approval. Id. As previously, ALPA objected to the Supplemental Consent Decree. Id. The ALJ ultimately concluded that "the proposed Supplemental Consent Decree can not be approved because Paragraphs 39 and 40 thereof abridge the rights provide [sic] to ALPA by a collective bargaining agreement with U.S. Airways, ALPA has not consented to the abridgement, and there has not been a finding of discrimination and a finding that abridgement is necessary to remedy the discrimination." Id. at 9.

   Accordingly, for good cause shown, we GRANT the Joint Motion and REMAND the case to the ALJ.⁵

   SO ORDERED.

       M. CYNTHIA DOUGLASS
       Chief Administrative Appeals Judge

       WAYNE C. BEYER
       Administrative Appeals Judge

¹> This appeal has been assigned to a panel of two Board members, as authorized by Secretary's Order 2-96. 61 Fed. Reg. 19, 978 § 5 (May 3, 1996 ).

² Piedmont later merged with USAir and the merged airline, U.S. Airways, became the successor defendant. Order Recommending Denial of Supplemental Consent Decree at 2.

³ This decision is available at http://www.oalj.dol.gov/public/ofccp/decsn/88ofc17d.htm. Page number citations in our decision are to this electronic version.

⁴ This decision is available at http://www.oalj.dol.gov/public/ofccp/decsn/9206usa1_txt.htm. Page number citations in our decision are to this electronic version.

⁵ We note that 41 C.F.R. § 60-30.13(d) provides that the ALJ's approval of a consent decree constitutes the "final administrative order." Thus, it appears that the ALJ's order approving the consent decree should not have been "recommended" and the Secretary of Labor did not have jurisdiction to issue the June 30, 1992 order approving the decree. Accord OFCCP v. SKF USA, Inc., ARB No. 00-023, ALJ No. 97-OFC-17 (ARB Mar. 30, 2001); OFCCP v. Cambridge Wire, Inc., No. 94-OFC-12 (ARB Nov. 26, 1996). However, in OFCCP v. Carolina Freight Carriers Corp., No. 93-OFC-15, (Mar. 16, 1995), the Secretary reviewed and approved a "recommended" consent order to "ensure finality and eliminate ambiguity." Slip op. at 2. Nevertheless, the Secretary emphasized that, "an ALJ's decision approving such a consent decree constitutes the final administrative order in the proceeding and no further action by the Secretary is necessary to make the order final and effective." Id.