United States Department of Labor
Office of Administrative Law Judges Law Library

NOTICE: THIS INDEX WAS PREPARED BY THE CIVIL RIGHTS DIVISION, OFFICE OF THE SOLICITOR, U.S. DEPARTMENT OF LABOR, FOR INTERNAL USE. IT IS NOT AN OFFICIAL INTERPRETATION OF THE CASES, AND WAS LAST REVISED IN NOVEMBER, 1996.

Return to Table of Topics, 503 Index

Collective bargaining agreements do not constitute a bar to back pay, reinstatement, promotion, hiring and award of retroactive seniority. OFCCP v. Southern Pacific Transportation Co., 79-OFC-10A, ALJ Rec. Dec. and Order, November 9, 1982, slip op. at 118; remanded on other grounds, Acting Assistant Secretary for Employment Standards Decision and Order of Remand, February 24, 1994; Consent Order, October 13, 1995.

Defendant's motion to implead two unions on the ground that any retroactive seniority could not be effectuated without their approval is denied. The requirement of Rule 19(a) that complete relief cannot be accorded without the third party is not met. OFCCP v. Burlington Northern Railroad, 81-OFCCP-21, ALJ Dec. on Motions and Prehearing Order, February 8, 1984, slip op. at 3; Consent Decree, August 27, 1984.

The defendant's relationship with its union is a third party contractual relationship that cannot insulate the contractor from an order to remedy discrimination by making the victims whole. OFCCP v. Yellow Freight System, Inc., 79-OFCCP-7, ALJ Rec. Dec. on Remand, August 26, 1988, slip op. at 68; remanded on other grounds, Special Assistant to the Assistant Secretary for Employment Standards Decision and Order of Remand, August 24, 1992; Consent Decree, February 2, 1993.

A union grievance initiated on behalf of a Section 503 complainant does not constitute a Section 503 complaint. OFCCP v. Norfolk & Western Railway Co., 93-OFC-4, ALJ Rec. Order Granting Motion for Summary Decision, slip. op. at 4; Assistant Secretary Order of Remand for Discovery, July 20, 1995.

The Assistant Secretary has the authority under Section 503, after a finding of discrimination, to award retroactive seniority without participation of the union in the proceedings. OFCCP v. Commonwealth Aluminum Corp., 82-OFC-6, Assistant Secretary for Employment Standards Final Decision and Order, February 10, 1994, at 25-27; remanded sub. nom., Commonwealth Aluminum Corp., v. United States Department of Labor, No. 94-0071-0(c)(W.D. Ky. September 6, 1996).

The employer cannot claim that other employee's rights under the collective bargaining agreement make accommodation an undue hardship where the contract gives the company broad discretion to make assignments and where the company failed to consult with the union about accommodation. OFCCP v. Cissell Manufacturing Co., 87-OFC-26, Acting Assistant Secretary for Employment Standards Final Decision and Order, February 14, 1994, at 12-13; final decision vacated sub. nom., Cissell Manufacturing Co., v. U.S. Department of Labor, No. 94-0184 (W.D. Ky. May 24, 1994), appeal pending.

In response to a petition to intervene in the proceedings between OFCCP and the UAL filed by the Air Line Pilots Association, International union ("ALPA"), the ALJ issued orders which affirmed the union's right to intervene under 41 CFR 60-30.24(a)(3) without "[disrupting] the proceeding." The ALJ held that ALPA's petition was untimely, but granted the petition to the extent that its counsel shall be allowed to participate at the hearing by cross examining any witnesses whose testimony is related to ALPA's collective bargaining agreement with UAL and any remedy which could affect seniority/working conditions of ALPA pilots. OFCCP v. United Airlines, 94-OFC-1, August 17, 1995, ALJ Order at 1-3.