U.S. Department of Labor Office of Administrative Law Judges
50 Fremont Street
Suite 2100
San Francisco, CA 94105
DATE: JANUARY 29. 1998
CASE NO. 98-MIS-00001
In the Matter of
KELLY R. RIGGERS,
Complainant.
ORDER OF REMAND
The above entitled matter is apparently brought pursuant to 29 CFR Part 9
and Executive Order 12933. On January 9, 1998 Kelly R. Riggers filed a request for hearing
with the Office of Administrative Law Judges. The matter was assigned to the undersigned on
January 28, 1998. The request for hearing was accompanied by a copy of a letter dated
December 16, 1997 addressed to Mr. Brant L. Stevens and signed by Ethel P. Miller of the
Office of Enforcement Policy, Government Contracts Team, and a letter of November 21, 1997
addressed to John Fraser, Acting Administrator, Wage and Hour Division, U.S. Department of
Labor, from Brant L. Stevens, attorney-at-law, who presumably represents Kelly R. Riggers.
29 CFR 9.100 sets forth the requirements for filing a complaint and the
procedures thereafter to be undertaken by the Wage and Hour Division of the U.S. Department
of Labor. From the limited correspondence submitted to the undersigned, it would appear that
Argus Systems, Inc. is the alleged successor contractor but there is no indication as to the
location and address of such contractor. There is no indication that the aforesaid alleged
successor contractor has even been contacted by the Wage and Hour Division for attempted
conciliation pursuant to 29 CFR 9.101 or that the Wage and Hour Division commenced an
investigation in accordance with 29 CFR 9.102. 29 CFR 9.102(a) requires that the Wage and
Hour Division, U.S. Department of Labor, investigate as necessary to gather sufficient data
concerning complaints filed in matters such as this unless a dispute has been resolved through
conciliation between the parties. 29 CFR Part 102(c) requires that upon completion of the
investigation, the Administrator shall issue a written determination of whether a violation has
occurred which shall contain a statement of findings and conclusions. Notice of the
determination shall be given by certified mail to the complainant and his representatives (if any)
and to the successor contractor and their representatives (if any). In the case herein there is no
information to suggest that the successor contractor, presumably Argus Systems, Inc., has ever
been contacted with reference to this matter by the Administrator or where the company is
located for service. Of the three documents contained in the file herein, there is nothing to
indicate that the alleged successor contractor was ever served or provided copies of any of the
documents.
[Page 2]
The letter of December 16, 1997 to Mr. Brant L. Stevens from Ethel P.
Miller, Office of Enforcement Policy, Government Contracts Team, does not appear to
constitute a written determination following an investigation of whether there is a violation under
Executive Order 12933. It appears to be merely an opinion letter replying to the letter of Mr.
Stevens of November 21, 1997 setting forth the opinion that Executive Order 12933 did not
apply to the Department of Navy's Acoustic Research Detachment in Bayview, Idaho because the
contract involved in the matter herein did not contain a required contract clause, and secondly,
because the Executive Order excludes military installations such as the Department of the Navy's
Acoustics Research Detachment in Bayview, Idaho.
There is no indication that an investigation was conducted by the Wage and
Hour Division to determine if the facility is in fact an excluded military installation, with a
statement of findings and conclusions. If the letter of November 21, 1997 was intended as a
written determination, there is no notice of the determination given by certified mail to the
successor contractor and their representatives, if any, which would be required since the successor
contractor would be the respondent in proceedings such as this and a necessary and proper party.
29 CFR 9.103(a) provides that, as except as provided in paragraph (b) of
that section, the determination of the Administrator shall advise the parties ordinarily the
complainant (if any), the successor contractor, and their representatives (if any) that the notice of
determination shall become the final order of the Secretary unless within 20 days of the date of
the determination of the Administrator, the Chief Administrative Law Judge of the Office of
Administrative Law Judges receives a request for hearing. The letter of December 16, 1997
from the Office of Enforcement Policy, Government Contracts Team, does not comply with this
regulation. In addition, the request for hearing of Kelly R. Riggers, dated January 9, 1998 is
deficient as it was not sent to the successor contractor, presumably Argus Systems, Inc., and
their representatives, if any, as well as to the Administrator of the Wage and Hour Division of the
U.S. Department of Labor, and the Associate Solicitor as required by the regulation.
29 CFR 9.103(b) additionally states that if the Administrator concludes
that no relevant facts are in dispute, the parties and their representatives, if any, will be so advised
and further advised that the determination shall become the final order of the Secretary and not
be appealable to any administrative or judicial proceeding unless within 20 days of the date of the
determination of the Administrator, a petition for review is filed with the Administrative Review
Board pursuant to 29 CFR 9.107. Obviously it cannot be determined from the limited
documents heretofore referred to whether or not there are any factual disputes or whether it is
strictly a question of law as to the applicability of Executive Order 12933. If there is no factual
dispute as to the nature of activity in the facility and that the facility in question herein is owned,
operated and controlled by the Department of the Navy, then the only issue is the interpretation
and applicability of 29 CFR §9.4(b)(2)(vii). If the latter is the case, then following such a
determination by the Administrator the appropriate forum would be a direct appeal by the
aggrieved party to the Administrative Review Board pursuant to 29 CFR 9.107 and the parties
should be so advised.
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Certainly the Wage and Hour Division of the U.S. Department of Labor
has to conduct an investigation herein and a final determination must be rendered which should
include the identity of the successor contractor, its mailing address so that it can be served, its
representative, if any, the identity of any other necessary and proper parties to this proceeding,
such as the U.S. Department of Navy, and where it may be served by mail if necessary, and
appropriate notices of the complaint procedures be given to the necessary and proper parties by
the Administrator, which has not been done herein but is required by due process and 29 CFR
9.101, 9.102, and 9.103. Until the foregoing is complied with, it is premature for this matter
to be before the Office of Administrative Law Judges when the necessary and proper parties have
not been sufficiently identified with addresses for appropriate service, nor given notice of any
complaint filed under Executive Order 12933, and without an investigation and determination of
whether there is a violation under Executive Order 12933. Certainly the opinion letter issued on
December 16, 1997 by the Office of Enforcement Policy, Government Contracts Team, does
not satisfy the requirements of a final determination and it wasn't even served on the successor
contractor or any other interested party found to be a necessary and proper party to this
proceeding which I can only assume is the Department of Navy.
Based on the foregoing, the matter herein is remanded to the
Administrator, Wage and Hour Division, U.S. Department of Labor, for the purposes of: (1)
identifying and locating the necessary and proper parties to this proceeding, (2) conciliation and if
necessary conducting an appropriate investigation as required by the regulations, (3) the giving of
appropriate notices to the necessary and proper parties to this proceeding, and (4) the issuance of
a final determination so that the aggrieved party may file a request for hearing before either the
Office of Administrative Law Judges or the Administrative Review Board as is appropriate and
determined by the Administrator.
