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.

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The regulations at 41 CFR 60-741.26(g)(2) and 60-741.28(a) are written in mandatory form and require that some sort of conciliatory effort be made. OFCCP v. Southern Pacific Transportation Co., 79-OFC-10A, ALJ Rec. Dec. and Order, November 9, 1982, slip op. at 18; remanded on other grounds, Acting Assistant Secretary for Employment Standards Decision and Order of Remand, February 24, 1994; Consent Order, October 13, 1995.

There are no rigid guidelines for how to conciliate and the regulations do not demand that mediation be under the guidance of a third party. Id. at 18-19; remanded on other grounds, Acting Assistant Secretary for Employment Standards Decision and Order of Remand, February 24, 1994; Consent Order, October 13, 1995.

The general concept of conciliation appears to contemplate first an investigation of the facts to determine the merits of what violation, if any, has occurred. The agency attempts concilia- tion by notifying the violator of its findings, conclusions and demands or desires. Next, the agency will in some fashion communicate to the violator the opportunity to come into compliance with the law voluntarily without litigation and attempt to initiate a dialogue on this subject. The details of the method in each case will depend on the facts. Id. at 19-20; remanded on other grounds, Acting Assistant Secretary for Employment Standards Decision and Order of Remand, February 24, 1994; Consent Order, October 13, 1995.

The agency need not inform the violator that if voluntary compliance fails, litigation will follow. Id. ; remanded on other grounds, Acting Assistant Secretary for Employment Standards Decision and Order of Remand, February 24, 1994; Consent Order, October 13, 1995.

To conciliate means to reconcile, to compromise, placate, or otherwise satisfy the grievance of the complainant. To attempt conciliation means to take some affirmative action or to make some reasonable effort to resolve the differences. Id. at 25; remanded on other grounds, Acting Assistant Secretary for Employment Standards Decision and Order of Remand, February 24, 1994; Consent Order, October 13, 1995.

The failure of the agency to volunteer to back down from its position, particularly in the absence of signs of reciprocation, does not prove lack of good faith. Id. ; remanded on other grounds, Acting Assistant Secretary for Employment Standards Decision and Order of Remand, February 24, 1994; Consent Order, October 13, 1995.

OFCCP's efforts to conciliate were sufficient even though the meeting to discuss appropriate remedies for the defendant's violations lasted only 15 minutes. The fact that the parties quickly reached an impasse because the defendant refused to consider back pay for rejected applicants does not negate the plaintiff's good faith attempt to conciliate. OFCCP v. Central Power & Light Co., 82-OFC-5, ALJ Rec. Dec., March 30, 1987, slip op. at 3; Consent Decree, December 10, 1991.

The requirement at 41 CFR 60-741.26(g)(2), that OFCCP conciliate violations, is not a jurisdictional requisite. The plaintiff can be granted relief for individuals who were not identified during the investigation nor discussed during conciliation when these persons were victims of the same practices which were presented as violations. Id. at 4; Consent Decree, December 10, 1991.

Conciliation efforts consisting of several telephone conversations and one face-to-face meeting, though minimal, were sufficient to satisfy 41 CFR 60-741.26(g)(2). OFCCP v. East Kentucky Power Cooperative, Inc., 85-OFC-7, ALJ Rec. Dec. and Order, March 21, 1988, slip op. at 15, settled and dismissed, ALJ Order Approving Stipulated Dismissal, July 7, 1988.

ALJ permits OFCCP to amend complaint to broaden time period

in which allegations occurred even though no conciliation occurred with respect to earlier time period on the ground that the regulations do not require that amendments to complaints be preceded by separate conciliation efforts and on the ground that the amendment relates to a time period rather than a different type of violation. OFCCP v. Jefferson County Board of Education, 90-OFC-4, ALJ Order Granting Motion to Amend Complaint, November 21, 1990, slip op. at 2-3; Consent Decree, May 7, 1991.

Compliance with the regulations governing conciliation might require that further conciliation be undertaken prior to amending a complaint, if the amended complaint asserted an entirely different type of violation from that asserted in the original complaint. Id. at 3; Consent Decree, May 7, 1991.

Contractor's failure to comply with the terms of a conciliation agreement, in which contractor agreed to correct AAP violations under the Executive Order, Section 503 and VEVRA, was not merely a failure to comply with "paperwork" rules, nor merely a failure to file routine reports on time, but rather a deliberative, complete violation of that agreement and of substantive equal employment opportunity law. OFCCP v. Disposable Safety Wear, Inc. (Executive Order, Section 503 and VEVRA), 92-OFC-11, ALJ Recommended Dec. and Order, August 20, 1992, slip op. at 13, rev'd on other grounds, Secretary of Labor Dec. and Final Administrative Order, September 29, 1992.

Contractor's violation of a conciliation agreement would warrant debarment and contract cancellation but for the following special factors: 1) contractor's persuasive promises that it will comply with its affirmative action obligations in the future; and 2) the plant manager's "concern" for loss of jobs by employees at the plant should sanctions be imposed. Id. at 13-14, rev'd, Secretary of Labor Dec. and Final Administrative Order, September 29, 1992.

Debarment of contractor for violation of a conciliation agreement is appropriate because, by entering into the conciliation agreement, the contractor had the opportunity to demonstrate compliance for almost four years and failed to do so. OFCCP v. Disposable Safety Wear, Inc. (Executive Order, Section 503 and VEVRA), 92-OFC-11, Secretary of Labor Dec. and Final Administrative Order, September 29, 1992, slip op. at 6-7.

The Secretary orders debarment of contractor for a period of 90 days for contractor's repeated violations of a conciliation agreement in which contractor agreed to correct AAP violations under the Executive Order, Section 503 and VEVRA. After 90 days, contractor may petition for reinstatement in accordance with 41 CFR 60-1.31. Id. at 13-14.

Provisions of the [OFCCP Compliance] Manual, which state that the [Equal Opportunity Specialist] should keep the complainant informed of the progress of conciliation sessions, are more properly viewed as providing guidance to the EOS concerning how to facilitate the conciliation process, and the failure of the EOS to communicate offers of settlement to the complainant is not a failure to conciliate. Those provisions of the Manual confer no rights upon a Section 503 defendant which could be raised as a defense to a Section 503 complaint. OFCCP v. Commonwealth Aluminum, 82-OFC-6, Acting Assistant Secretary for Employment Standards Final Decision and Order, February 10, 1994, at 5-6; remanded sub. nom., Commonwealth Aluminum Corp. v. United States Department of Labor, No. 94-0071-0(c) (W.D. Ky. September 6, 1996).

Commonwealth was aware that OFCCP was seeking relief for other similarly situated individuals in conjunction with its investigation on an individual complaint. Absent notice of a withdrawal or settlement of claims by OFCCP, Commonwealth should have known that the enforcement action would include other individuals as well as the original complainant. Id. at 7; remanded sub. nom., Commonwealth Aluminum Corp. v. United States Department of Labor, No. 94-0071-0(c) (W.D. Ky. September 6, 1996).

Settlement efforts must be pursued before formal enforcement may be initiated. OFCCP satisfied that obligation by meeting with company personnel as well as counsel and attempts to resolve the matter through use of a Conciliation Agreement. OFCCP v. First Federal Savings Bank of Indiana, 91-OFC-23, ALJ Order Denying Defendant's Post-Hearing Motion, June 29, 1994, at 5-6; affirmed on other grounds, Secretary of Labor, Amended Final Decision and Order, November 20, 1995.