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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A Federal contractor's affirmative action clause obligations are not limited solely to Federal contract jobs but extend to any position for any operations. OFCCP v. E.E. Black, Ltd., 77- OFCCP-7R, Assistant Secretary for Employment Standards Dec. and Order, February 26, 1979, slip op. at 18, aff'd, E.E. Black v. Marshall, 497 F. Supp. 1088 (D. Hi. 1980), E. E. Black v. Donovan, 26 FEP Cases 1183 (D. Hi. 1981).

The regulation at 41 CFR 60-741.3 which lists types of contracts that are covered under the Act is not exhaustive. OFCCP v. Graves Truck Line, Inc., 80-OFCCP-2, ALJ Rec. Dec., April 16, 1980, slip op. at 2, dismissed, ALJ Order of Dismissal, November 4, 1981.

To determine if there is a relationship between the Government and a contractor, look at the trade realities of conducting business in the market for the goods or services the Government is procuring; the nature and extent of the business which exists between the Government and the contractor; and in the context of each case whether the contractor has a significant on-going commercial relationship with the Government. Id.

It is possible for the Government to prove coverage by aggregating bills of lading. Id. at 3.

Even if a particular contract has no connection with any of the contractor's Federal contracts, it is a covered contract (if over $2,500) unless there is a specific waiver. E.E. Black, Ltd. v. Marshall, 497 F. Supp. 1088, 1092 (D. Hi. 1980), reconsideration denied, E. E. Black v. Donovan, 26 FEP Cases 1183 (D. Hi. 1981).

For purposes of administrative enforcement proceedings, the validity of the waiver provision in former 20 CFR 741.25(a)(5) must be assumed. OFCCP v. Western Electric Co., 8O-OFCCP-29, Deputy Under Secretary for Employment Standards Remand Decision, April 24, 1985, slip op. at 13, reversing and remanding, ALJ Rec. Dec., March 4, 1981.

The value of the contract with the Government is the crucial matter, not how it is divided among those who enter into the contract with the Government. OFCCP v. Southern Pacific Transportation Co., 79-OFC-10A, ALJ Rec. Dec., November 9, 1982, slip op. at 30; remanded on other grounds, Acting Assistant Secretary for Employment Standards Decision and Order of Remand, February 24, 1994; Consent Order, October 13, 1995.

Legislative intent of the Act was to exclude small, occasional contracts because of administrative costs of applying the statute to minimal, essentially trivial, business relationships, but to include substantial business relationships in the applicability of the Act. Id. at 31; remanded on other grounds, Acting Assistant Secretary for Employment Standards Decision and Order of Remand, February 24, 1994; Consent Order, October 13, 1995.

The realistic business relationship, rather than any particular contract document for a small part of that relationship is what needs to exceed $2500 or $50,000. Id.; remanded on other grounds, Acting Assistant Secretary for Employment Standards Decision and Order of Remand, February 24, 1994; Consent Order, October 13, 1995.

The Secretary of Labor could impose conditions beyond those authorized by Executive Order 11758 on contracts to be negotiated by his own department but his authority over contracts made by other departments would appear not to exceed the specific delegation of the Executive Order. Id. at 34; remanded on other grounds, Acting Assistant Secretary for Employment Standards Decision and Order of Remand, February 24, 1994; Consent Order, October 13, 1995.

The statute does not provide for any express administrative exemptions for the railroad, air, bus or truck industries. Id. at 64; remanded on other grounds, Acting Assistant Secretary for Employment Standards Decision and Order of Remand, February 24, 1994; Consent Order, October 13, 1995.

Bills of lading supply coverage. Id. at 26; remanded on other grounds, Acting Assistant Secretary for Employment Standards Decision and Order of Remand, February 24, 1994; Consent Order, October 13, 1995.

For the purposes of coverage under the Act, it does not matter whether the Government is the purchaser or seller. OFCCP v. Ozark Air Lines, Inc., 80-OFCCP-24, ALJ Rec. Dec. and Order, December 7, 1982, slip op. at 8, aff'd, Deputy Under Secretary for Employment Standards, June 30, 1986, slip op. at 4-5.

Coverage was not established in this case for certain years because the only proof consisted of indirect evidence by way of general testimony and a showing that the railroad has a program in place designed to comply with the Act. OFCCP v. Missouri Pacific Railroad, 81-OFCCP-8, ALJ Rec. Dec. and Order, March 17, 1983, slip op. at 2, aff'd, Deputy Under Secretary for Employment Standards, August 12, 1985.

A contractor with a Government contract of over $2500 at any facility must utilize the waiver provision in 41 CFR 60-741.3 (a)(5) in order to avoid the Act's affirmative action obligations at any of its other facilities and on all work done by that contractor on contracts of over $2500. OFCCP v. W.S. Hatch Trucking Co., 84-OFCCP-15, ALJ Order Denying Defendant's Motion for Summary Judgment, June 5, 1986, slip op. at 4.

The waiver provision in 41 CFR 60-741.3(a)(5) applies to contracts of over $2500 as well as contracts of over $50,000. Id. at 4-5.

Requiring a contractor to be an affirmative action employer at its Government contract facility, and not at its nongovernment contract facilities, would result in disparate treatment of handicapped persons. Id.

An employer is a subcontractor subject to the requirements of 41 CFR 60-741.2 when the type of service it provides is necessary to the contractor's performance of its agreement with the Government, even though this specific subcontractor's service may not be necessary. OFCCP v. Monongahela Railroad Co., 85-OFC-2 ALJ Rec. Dec. Granting Plaintiff's Motion for Summary Judgment, April 2, 1986, slip op. at 4, aff'd, Deputy Under Secretary for Employment Standards, March 11, 1987.

The contractor was covered by the requirements of the affirmative action program regulations by virtue of its blanket purchase agreement with the Defense Department, which was regarded as a contract for purposes of Section 503. OFCCP v. Bruce Church, Inc., 87-OFC-7, ALJ Rec. Dec. and Order, May 18, 1987, aff'd, Secretary's Final Decision and Order, June 30, 1987.

Defendant, a bulk power supplier, is covered under the provisions of Section 503 because the defendant is a corporate sibling to a government contractor and operates to supply electricity to service companies which in turn supply electricity to the government. To allow a government contractor to elude coverage by maintaining a subsidiary supplier would be inconsistent with Section 503's purpose. OFCCP v. Texas Utilities Generating Company, 85-OFC-13, ALJ Rec. Dec. and Order, March 2, 1988, slip op. at 3-4, remanded on other grounds, Assistant Secretary for Employment Standards Decision and Order of Remand, August 25, 1994; Consent Decree, April 15, 1996.

Defendant is estopped from contending post trial (after conceding coverage at trial) that the OFCCP's case fails without proof that each complainant could have or would have been involved in the actual performance of government contracts if employed by defendant. OFCCP v. Yellow Freight System, Inc., 79-OFCCP-7, ALJ Rec. Dec. on Remand, August 26, 1988, slip op. at 8, remanded, Special Assistant to the Assistant Secretary for Employment Standards, August 24, 1992; Consent Decree, February 2, 1993.

Given that defendant concedes that it has had qualifying contracts during all of the relevant years, the regulation at 41 CFR 60-741.3(a)(5) compels the conclusion that (absent a waiver requested by defendant and granted by the Director) all of defendant's facilities are covered, including those at which complainants would have been employed. Id.; Consent Decree, February 2, 1993.

Under 41 CFR 60-741.2(a)(5), all of a contractor's facilities are covered by section 503 unless the contractor requests a waiver for a specific plant. Since the defendant did not request a waiver for the plant at issue, OFCCP has jurisdiction over that plant. OFCCP v. PPG Industries, Inc., 86-OFC-9, Deputy Assistant Secretary for Employment Standards Final Dec. and Remand Order on Remedy, January 9, 1989, aff'g, ALJ Rec. Dec., May 17, 1988, slip op. at 17, dismissed on APA review, PPG v. United States, C.A. No. 89-0757 JGP (D.D.C.); reversed and remanded, 52 F 3d. 362 (D.C. Cir. 1995); Consent Decree, September 24, 1996.

The North Carolina statute and regulations establishing and governing the University of North Carolina (UNC) make it clear that the UNC is a single agency of which UNC-A and NCSA are only parts. It is not necessary, therefore, to make a finding of privity of contract to establish coverage. OFCCP v. University of North Carolina, 84-OFC-20, Acting Secretary of Labor Dec. and Final Administrative Order, January 23, 1989, slip op. at 6, aff'd, Board of Governors of the University of North Carolina v. United States Department of Labor, 917 F. 2d 812 (4th Cir. 1990), cert. denied, 500 U.S. 916 (1991).

The rationale of the Court's decision in Pennhurst State School and Hospital v. Halderman, 451 U.S. 1 (1981), is not applicable to Section 503 coverage of the University of North Carolina constituent institutions, because the equal opportunity clause was presumably included in each contract required to include it and, if it was not, the clause would have been incorporated by operation of law. OFCCP v. University of North Carolina, 84-OFC-20, Acting Secretary of Labor Dec. and Final Administrative Order, January 23, 1989, slip op. at 7-8, aff'd, Board of Governors of the University of North Carolina v. United States Department of Labor, 917 F. 2d 812 (4th Cir. 1990), cert. denied, 500 U.S. 916 (1991).

The exemption in 41 CFR 60-1.5(a)(4) does not cover the constituent campuses of UNC because they are not separate state agencies. The exemption applies only to agencies separate and distinct from the agency holding the contract. Id. at 8, aff'd, Board of Governors of the University of North Carolina v. United States Department of Labor, 917 F. 2d 812 (4th Cir. 1990), cert. denied, 500 U.S. 916 (1991).

Under North Carolina General Statutes Chapter 116, Article 1 and Student Bar v. Byrd, the University of North Carolina at Asheville and the North Carolina School of the Arts are not separate agencies and are not entitled to the exemption in 41 CFR 60-1.5(a)(4), 60-250.3(a)(4) and 60-741.3(a)(4). Id. at 11, aff'd, Board of Governors of the University of North Carolina v. United States Department of Labor, 917 F. 2d 812 (4th Cir. 1990), cert. denied, 500 U.S. 916 (1991).

ALJ grants OFCCP's motion to compel contractor to provide discovery regarding alternate bases for jurisdiction and regarding single-entity issue, even though complaint alleged coverage based solely on defendant's FSLIC insurance contracts. OFCCP v. USAA Federal Savings Bank, 87-OFC-27, ALJ Rulings and Order on Plaintiff's and Defendant's Motions to Compel Discovery, December 20, 1989, slip op. at 2; ALJ Recommended Decision and Order on Motions for Summary Judgment, October 4, 1990, Secretary of Labor Final Decision and Order, March 16, 1995.

An electrical utility contractor, which is statutorily required to provide utility services to all users, including the Government, did not voluntarily assume the obligations of Section 503. OFCCP v. City Public Service of San Antonio, 89-OFC-5, ALJ Rec. Dec. and Order, April 4, 1990, slip op. at 4; reversed and remanded, Assistant Secretary for Employment Standards Decision and Remand Order, January 18, 1995, slip op. at 7; Consent Order dismissing case, February 5, 1996.

The Federal Savings and Loan Insurance Corporation (FSLIC) is a contracting agency because it is an instrumentality in the Executive branch of the Government. OFCCP v. USAA Federal Savings Bank, 87-OFC-27, ALJ Recommended Decision and Order on Motions for Summary Judgment, October 4, 1990, slip op. at 5, reversed on other grounds, Secretary of Labor Final Decision and Order, March 16, 1995.

FSLIC insurance is not a Government contract; rather, it is a type of Federal financial assistance. Id. at 9-12.

ALJ discusses purpose of FSLIC insurance. Id. at 9.

ALJ discusses differences between Federal deposit insurance and ordinary commercial insurance contracts. Id. at 10-11.

ALJ discusses the position of Federal Deposit Insurance Corporation and the Federal Home Loan Bank Board regarding OFCCP's determination that FSLIC insurance is a Government contract. Id. at 11-12.

Because contractor stipulated before ALJ that, under the existing case-law at that time, it was covered under Section 503 and the regulations, OFCCP was justified in not developing the record on issue of whether complainants would have carried out Federal contracts. Judicial economy suggests not burdening the record with proof on every issue where there is a possibility a statutory or regulatory interpretation may be reversed. OFCCP v. Rowan Companies, Inc., 89-OFC-41, Special Assistant to the Assistant Secretary for Employment Standards Dec. and Order of Remand, May 28, 1992, slip op. at 6, ALJ Rec. Dec. and Order on Remand, January 4, 1993; remanded, Assistant Secretary for Employment Standards Order of Partial Remand, April 11, 1995; Second ALJ Decision and Order on Remand, March 11, 1996; pending, Administrative Review Board.

Remand to ALJ is appropriate because considerations of economy suggest that the record on coverage be fully developed under currently applicable legal principles so that Assistant Secretary can determine whether it is necessary to review the lengthy record and consider the complex merits issues raised by this case. Ibid.; remanded, Assistant Secretary for Employment Standards Order of Partial Remand, April 11, 1995; Second ALJ Decision and Order on Remand, March 11, 1996; pending, Administrative Review Board.

It would not be unfair to require contractor to expend additional resources necessary to respond to discovery regarding work-on-the-contract issue after considerable expense of defending litigation because even if case were dismissed now for lack of jurisdiction, OFCCP could renew investigation to resolve the issue and, under 41 CFR 60-1.43, could require contractor to make available its records on Government contracts and subcontracts. Id. at 7; remanded on other grounds, Assistant Secretary for Employment Standards Order of Partial Remand, April 11, 1995; Second ALJ Decision and Order on Remand, March 11, 1996; pending, Administrative Review Board.

If OFCCP can establish coverage under new legal theory set forth in WMATA v. DeArment, 55 EPD ¶ 40,507 (D.D.C. 1991), Assistant Secretary has an obligation under Section 503 to determine whether complainants have been subjected to discrimination and are entitled to relief. Thus, case should be remanded to ALJ for determination whether coverage exists for each individual complainant. Ibid.; remanded on other grounds, Assistant Secretary for Employment Standards Order of Partial Remand, April 11, 1995; Second ALJ Decision and Order on Remand, March 11, 1996; pending, Administrative Review Board.

Contractor's mere acknowledgment that it is a Government contractor under Section 503 cannot be construed as an admission that it had Government contracts which complainants would have performed. OFCCP v. Yellow Freight Systems, Inc., 79-OFCCP-7, Special Assistant to the Assistant Secretary for Employment Standards Dec. and Order of Remand, August 24, 1992, slip op. at 5-6; Consent Decree, February 2, 1993.

A judgment by default as a sanction for failure to comply with a discovery order is a drastic remedy and should be applied only in extreme cases. However, where only the coverage issue was remanded and a disposition on the merits has already been recommended in favor of the contractor, a judgment by default on the issue of coverage is appropriate where contractor fails to comply with ALJ discovery order. OFCCP v. Rowan Companies, Inc., 89-OFC-41, ALJ Rec. Dec. and Order on Remand, January 4, 1993, slip op. at 6; remanded, Assistant Secretary for Employment Standards Order of Partial Remand, April 11, 1995; Second ALJ Decision and Order on Remand, March 11, 1996; pending, Administrative Review Board.

A defendant's failure to produce evidence on an issue of jurisdiction such as coverage may be held to constitute an admission that jurisdiction lies. Ibid.; remanded, Assistant Secretary for Employment Standards Order of Partial Remand, April 11, 1995; Second ALJ Decision and Order on Remand, March 11, 1996; pending, Administrative Review Board.

Because contractor failed to comply with ALJ discovery order requiring contractor to respond "fully" to OFCCP's interrogatories regarding coverage, ALJ imposes sanction resembling judgment by default under FRCP 37(b)(2)(c): i.e., ALJ holds that, under the principles set forth in WMATA, each complainant would have performed work on defendant's Government contracts, subcontracts, or oil leases. Id. at 6-7; remanded, Assistant Secretary for Employment Standards Order of Partial Remand, April 11, 1995; Second ALJ Decision and Order on Remand, March 11, 1996; pending, Administrative Review Board.

In order to successfully show that an employee has been unlawfully discriminated against in violation of Section of 503, it must be established that: 1) the alleged violator is an employer covered under the Act; 2) the employee is handicapped; and 3) the employee is qualified for the position with or without reasonable accommodation. The contractor then has the opportunity to demonstrate that the accommodation would pose an undue burden on the contractor's business. OFCCP v. Exxon Corporation, 92-OFC-4, ALJ Rec. Dec. and Order, June 15, 1993, slip op. at 22; affirmed on other grounds, Administrative Review Board Final Decision and Order, October 28, 1996.

In light of WMATA v. DeArment, 55 EPD ¶40,507 (D.D.C. l99l), the parties are directed to file additional briefs with the Assistant Secretary addressing whether the WMATA decision "bears on the Department's jurisdiction to proceed with review of the case." OFCCP v. Yellow Freight Systems, Inc., 82-OFC-2, Acting Assistant Secretary for Employment Standards Order, August 20, 1993, slip op. at l-2; remanded, Acting Assistant Secretary Decision and Order of Remand, October 6, 1993; Consent Decree, January 31, 1994.

Employee/applicant of a trucking company was employed to carry out a contract where the specific terminal handles government freight and the particular class of workers which include the complainant specifically worked on jobs pursuant to bills of lading as assigned on a random basis. As a result, the probability that complainant would have worked on a government job is no less than any other driver. OFCCP v. Yellow Freight Systems, 89-OFC-40, ALJ Recommended Decision and Order, May 17, 1994, at 18; Consent Decree, February 29, 1996.

There is no principle of administrative law that restricts an agency from reopening proceedings to take new evidence after the grounds upon which it relied are determined by a reviewing court to be invalid. Consequently, whether Commonwealth contested the issue of coverage of the individuals under the Act from the outset of this action and continued to do so throughout discovery and the hearing has no bearing on the necessity to remand the issue to the Department of Labor. Commonwealth Aluminum Corp. v. U.S. Department of Labor, et al., No. 94-0071-0 (C), (W.D.Ky. September 6, 1996) at 4.

Subject matter jurisdiction must be established before an allegation of discrimination under Section 503 of the rehabilitation Act can be litigated. Once such jurisdiction is established, a Section 503 action may proceed to litigation on the merits. OFCCP v. Norfolk Southern Corporation, 89-OFC-31, Assistant Secretary for Employment Standards Decision and Order of Remand, October 3, 1995, at 4-5.

The working-on-the-contract issue is jurisdictional and must be specifically addressed by the ALJ prior to proceeding to the merits. Id. at 5.

Since the WMATA decision represents an intervening change of law, considerations of fairness and economy require that the case be remanded to accord OFCCP the opportunity to deal with this issue. OFCCP v. Mt. Bell Telephone Co., 87-OFC-25, Assistant Secretary for Employment Standards, Order Denying Motion to Strike; Decision and Order of Remand, August 25, 1994, at 8; Consent Decree, February 9, 1995.

The ALJ found that absent evidence that Defendant attempted to carry out a contract or subcontract, by the operation of its land rigs individuals who would have been assigned to perform work on those rigs are not covered "persons" under the Act. OFCCP v. Rowan Companies, Inc., Marine Division, 89-OFC-41, ALJ Second Recommended Decision and Order on Remand, March 11, 1996, at 3; exceptions pending, Administrative Review Board.

Any per se or automatic negation of coverage merely because the applicant was never hired, and thus the fact of work assignment destination can never be determined, would excuse all employers who discriminately fail to hire in violation of the Act, a result which could not have been intended. Id. at 4.

The ALJ found that individuals who would have been assigned to offshore rigs were covered persons under the Act, where the record showed that Defendant's drilling services were necessary to the prime contractor's exercise of its right to drill for oil and gas on government owned land. Id. at 4.

The Assistant Secretary remanded the case to the ALJ for appropriate findings on the "working-on-the-contract" issue, and held that, "[a]lthough the "working-on-the-contract" jurisdictional issue was not raised or addressed below or in the pleadings filed subsequent to the [ALJ] Recommended Decision and Order, I am required to address this matter before the case can proceed." FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 230-31 (1990). OFCCP v. United Airlines, Inc., 86-OFC-12, Assistant Secretary for Employment Standards, Decision and Order of Remand, December 22, 1994, at 4-5.

In remanding the case to the ALJ for further proceedings to determine whether coverage existed during the relevant periods for the individuals for whom OFCCP continues to seeks relief, the Acting Assistant Secretary held, that "[s]ince the ALJ's coverage holding was based upon a provision of a regulation which has since been declared inconsistent with the language of Section 503 at the times of the alleged violations, the question of jurisdiction must be remanded to the ALJ to give OFCCP an opportunity to introduce further evidence, if necessary, to satisfy the new legal standard in WMATA. . . . If OFCCP can establish coverage, I have an obligation under the statute to ultimately decide the entire action." OFCCP v. Southern Pacific Transportation Company, 79-OFC-10A, et.al., Acting Assistant Secretary for Employment Standards, Decision and Order of Remand, February 24, 1994, at 7-8; Consent Order, October 13, 1995.

The Assistant Secretary considered the issue of jurisdiction or coverage raised by Yellow Freight's Motion for Reconsideration pivotal in determining whether Section 503 was violated vis-a-vis Mr. Quick. "Obviously, if he was not covered by Section 503, Yellow Freight could not have violated Section 503 towards him. . . . Accordingly, on remand it is only proper that the ALJ also be directed, . . . , to rule upon the jurisdictional defense that the Plaintiff has failed to prove jurisdiction under the Washington Transit case." OFCCP v. Yellow Freight System, Inc., 84-OFC-17, Acting Assistant Secretary for Employment Standards, Reconsideration of Final Decision and Order of Remand, December 22, 1993, at 3 n.2; Order Approving Settlement and Dismissal, April 20, 1994.

Noting that the ALJ's Recommended Decision and Order made no specific findings on the jurisdictional or coverage issue of working-on-the-federal-contract as applied to Mr. Quick's employment, the Assistant Secretary held that he was not precluded from ruling on the jurisdictional or coverage issue here, and would be remiss in avoiding this issue. Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 546 (1986). Id. at 6-8.

The Assistant Secretary expanded and modified his July 27, 1993, Final Decision and Order of Remand to require that the ALJ hearing and the resulting recommended decision . . . first and clearly specifically address the working-on-the-contract jurisdictional or coverage issue as applied to Mr. Quick. Id. at 8.

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. OFCCP v. Keebler Company, 87-OFC-20, Administrative Review Board, Final Decision and Order, September 4, 1996, at 3; Motion for Reconsideration pending, Administrative Review Board.

OFCCP's contention that the determination of who is employed to carry out a contract should be based upon job categories would improperly place the burden of proof on the contractor. Id. at 3; Motion for Reconsideration pending, Administrative Review Board.

OFCCP has the burden of demonstrating that Ms. DeAngelis was an individual employed by Keebler to carry out government contracts during the period of her employment from January 7 to May 20, 1985, which was the time of the allegedly illegal termination. It is not the [d]efendant's burden to demonstrate that certain employees are unconnected to the Government contracts under consideration. OFCCP v. Keebler Company, 87-OFC-20, Administrative Law Judge, Recommended Decision and Order, July 20, 1995, at 5-6; affirmed, Administrative Review Board, Final Decision and Order, September 4, 1996; Motion for Reconsideration pending, Administrative Review Board.

OFCCP failed to satisfy its burden of proving that complainant was employed to carry-out-a contract where she worked at one of two plants producing Tato Skins and the evidence establishes, at best, that she had as equal chance with all other production attendants at both facilities to have produced the Tato Skins sold pursuant to the Government contracts. Id. at 5-6; affirmed, Administrative Review Board, Final Decision and Order, September 4, 1996, at 3; Motion for Reconsideration pending, Administrative Review Board.

Although the "working-on-the-contract" jurisdictional issue was not raised or addressed below or in the pleadings filed subsequent to the Recommended Decision and Order, the Assistant Secretary for Employment Standards held that the issue must be addressed before the case could proceed and remanded it to the ALJ for appropriate findings on the "working-on-the-contract issue." OFCCP v. Keebler Company, 87-OFC-20, Assistant Secretary for Employment Standards, Decision and Order of Remand, December 21, 1994, at 3-4; Administrative Law Judge, Recommended Decision and Order, July 20, 1995; Administrative Review Board, FinalDecision and Order, September 4, 1996; Motion for Reconsideration pending, Administrative Review Board.