The Conciliation Agreement, as well as the covering letter to Mr. Domingo are standard forms, apparently used for various situations containing language not relevant to the defendant's obligations. For example, these forms contain references to Section 503 of the Rehabilitation Act of 1973, which applies to discrimination against the disabled, and to the Vietnam Era Veterans' Readjustment Assistance Act of 1974, which applies to employment opportunities for veterans. The investigation of defendant revealed that minorities were being consistently utilized and felt they were treated fairly. DX 2, p. 23-1. The only violation found related to the underutilization of women.

   The violation of a conciliation agreement is one of the bases for an expedited hearing. The significant part of the Conciliation Agreement is Part II, entitled "Specific Provisions" and includes the following language, interpretation of which is central here:

2. Violation: Goals and Timetables, 41 CFR 60-4.3(a)4 and 7

A&S failed to adequately demonstrate that good faith efforts were made to correct the underutilization of females in the Carpenter and Laborer trades for the Denver/Boulder SMSA.

Remedy:

On April 20, 1992, A&S initiated procedures to correct underutilization of females in the Carpenters and Laborer trades by affirmative recruiting of females for these trades. A&S further agreed to establish a linkage with the Northeast Women's Center, Mi Casa Women's Resource Center and will utilize affirmative action job order requests for female applicants at the time of the next employment opportunity in its underutilized crafts.

3. Violation: Current List of Recruitment Sources, 41 CFR 60-4.3(a)7.b

A&S did not establish and maintain a current list of minority and female recruitment sources, provide written notification to them when employment opportunities were available, and keep a record of their responses.

Remedy:

On April 20 1992 A&S developed and will maintain a current list of minority and female recruitment sources and will provide written notification when employment opportunities are available and keep a record of their responses.

5. Violation: Mandatory Job Listing, 41 CFR 60-250.4(b)

A&S did not list suitable job openings with the local Job Service.

Remedy:

On April 20, 1992, A&S agreed to and ensure [sic] they will list all future suitable openings with the Job Service Center at the time of the next suitable opening. [Italics supplied.]

   Linkage

   At the same time as ASI's president, Mr. Dennis Domingo, received the Conciliation Agreement he also received copies of three letters, the originals of which were sent by the District Director, OFCCP to the three employment sources listed in the Conciliation Agreement, i.e., to the Colorado Job Service Center, to the Northeast Women's Center, and to the Mi Casa Women's Resource Center. DX 3.

   Each of these letters stated:

During a recent compliance review, we recommended and Acoustics & Specialties, Inc., Denver, Colorado, agreed to utilize your services to secure applicants to meet their affirmative action goals. ... We request that you contact Mr. Dennis Domingo, President to discuss filling the contractor's employment needs at [phone number). DX 3.

   Mr. Domingo was not contacted by any of the three sources in response to these letters. Mr. Domingo was not surprised at this lack of response because he believed and still believes that the jobs of laborer and carpenter in his business are not suitable for or desired by women One of the reasons for his belief is an "On-site job analysis" that was prepared in connection with an unrelated workers' compensation claim which showed that previous experience (presumably in the acoustic ceiling installation industry) was required for the job, as well as the ability occasionally (.6 to 2.5 hours in an 8 hour day) to lift between 60 and 73 pounds. DX 1. He testified that in his 35 years in the acoustic tile business he has never seen a woman working in either of these crafts. TR 247, 266. Thus, even though he had no referrals from the three sources, Mr. Domingo believed, and plaintiff does not dispute, that the letters from OFCCP to the three sources established the linkage called for. TR 69. He further assumed from the lack of response that no women were found by the sources who had the requisite experience, skills, strength and desire to work for ASI.

   Contentions and analysis

   Plaintiff contends that defendant had an obligation under the Conciliation Agreement to contact the sources every time there was a need for an additional worker. Defendant contends that it complied with, the Conciliation Agreement by establishing "linkage" with the three sources, i.e., by having the sources made aware of ASI's availability as a job source for qualified women.

   In an expedited hearing such as this the contractor has the opportunity to show that "the violation complained of did not occur and/or that good cause or good faith efforts excuse the alleged violations." 41 CFR §60-30.34.

   Prior to October 31, 1992 Mr. Domingo was not aware that OFCCP thought he was not in compliance with the Conciliation Agreement. He thought he was. Therefore, he made no effort at all to do anything other than wait for women applicants to be referred from any of the sources, or for women to apply on their own or from other referrals. TR 392. Since there were no efforts (until February 1993) there were no "good faith efforts" that could excuse the violations, if any, alleged here. The only issues for decision are whether the violations did not occur or whether good cause excuses the violations. The resolution of both these issues depends on whether Mr. Domingo's interpretation of the Conciliation Agreement was reasonable under the circumstances.

   What are "employment opportunities" and "suitable openings?" Contrary to plaintiff's assertion, the Conciliation Agreement does not "speak for itself."

   ASI was visited for a few days in April 1992 by Mr. Lucero, OFCCP's compliance officer. The conversations between Mr. Lucero and Mr. Domingo and other ASI employees were courteous and civil, if not friendly. TR 137, 301. The result was the Conciliation Agreement, which was a boiler plate standard form (TR 78, 84-85), not particularly designed for any specific employer's method of hiring workers, but necessarily designed to cover most situations approximately. The inevitable ambiguities in such a document invite further clarification.

   The discussion at the exit conference between Mr. Domingo and Mr. Lucero, the OFCCP compliance officer, at the end of April 1992 is important.

   Mr. Domingo testified that he explained ASI's hiring mode to Mr. Lucero. TR 271. Mr. Domingo continued:

A lot of subcontractors on a given job have a major work force on that job. They might have 40 or 50 people so they hire people for a job. They have a contract and they put a key person on the job and then they hire for that job. So they have a hiring process focused on fulfilling a specific contract.

We have a large number of small jobs. On any given day, we work on 15 to 20 jobs with 20 to 30 people and so we are in a position where we constantly evaluate a workload or requirement with a work force. What happens is if we're having trouble keeping up and somebody calls and applies for a job, we're likely to add their name or hire them and add them. ...

we don't really go out and hire, solicit applicants. So it would be more appropriate for us to have an ongoing kind of offer, where whenever you have somebody, send them and we will include them in our list of applicants. [TR 272-273.]

   Mr. Domingo testified that Mr. Lucero did not specifically state that the sources would have to be contacted every time ASI was about to hire a new worker.

The next part of that conversation was, yes, I've never seen one [woman] in our industry and none has ever applied. How would I get them? His response was, you could register with three of these agencies and they can send you applicants and that would fulfill the requirement. [TR 267.]

   The transcript continues:

Judge Schneider: You heard what counsel just asked you specifically was whether Mr. Lucero himself said to you something about specific openings.

Mr. Domingo: Yes, she did, and then my reply was that it didn't fit our mode, and he did not come back then with any kind of response. TR 272. [See also TR 307.]

   Mr. Domingo further testified that his assumption was that "the next employment opportunity was the ongoing situation and they were one and the same." TR 278.

   Mr. Lucero testified differently:

I said you would have to list your vacancies. If it's an ongoing listing, the company would still have to contact that source to inform that source that they had vacancies. [TR 70.]

See also, TR 195-196, 199-202.

   Mr. Domingo and Mr. Lucero were the only ones at the exit conference. TR 265. Which version of the conversation is the accurate one will never be known for sure. My impression is that Mr. Lucero is very courteous and does not wish to offend persons he deals with. Mr. Domingo's recollection rings true that when he said "it didn't fit our mode," Mr. Lucero did not respond. I therefore find that at the time of the exit conference it was not clear to Mr. Domingo that listing ASI with the sources as an ongoing employment opportunity was insufficient.

   Mr. Domingo testified in deposition that if he thought the Conciliation Agreement required him to call the three sources every time ASI needed to hire someone he would have found that objectionable. Domingo Dep. 75-77.

   Plaintiff's post hearing brief (pp. 38-39) cites contract law for the proposition that acceptance by silence is exceptional. The exit conference was not the locus of a contractual agreement. The dialogue between Mr. Domingo and Mr. Lucero is cited to shed light on the question whether Mr. Domingo's interpretation of the Conciliation Agreement was permissible.

   I conclude that Mr. Domingo's interpretation of the Conciliation

Agreement was permissible in the period between the signing of the Conciliation Agreement and October 31, 1992.

   There was no contact between OFCCP and ASI between the execution of the Conciliation Agreement and October 31, 1992. OFCCP contends that nothing ASI did after that date to comply with the Conciliation Agreement is relevant, since the period in which non-violation could have been established expired on October 31. OFCCP contends further that the letters it sent after this date, detailed below, were efforts only to permit defendant to gather proof that good faith efforts at compliance with the Conciliation Agreement had taken place before October 31, not that any further efforts would themselves count as good faith efforts to comply.

   I accept these contentions and find that the follow up audit performed in January 1993 and the letters from OFCCP to ASI dated January 21, 1993 (GX 8), January 28, 1993 (DX 13), February 4, 1993 (GX 17) and March 16, 1993 (GX 20) were preparations for an enforcement action, not intended to permit defendant to attempt compliance with the Conciliation Agreement.

   Even though the Conciliation Agreement does not terminate until one year from the date of the signature of the Director, i.e., June 15, 1993 (GX 1, p. 4), by March 16, 1993 the Regional Director of OFCCP had recommended to the Solicitor that the matter be referred for enforcement. GX 20. It would have been futile for ASI to make further efforts at compliance thereafter.

   Reporting violations

have found that Mr. Domingo's interpretation of the Conciliation Agreement was permissible and I conclude that defendant has therefore shown either that the violations did not occur or that good cause excuses the violations.

   Overreaching and duress

   Defendant has contended that the Conciliation Agreement is void because OFCCP overreached or subjected defendant to duress. Mr. Domingo testified that the contents of the Conciliation Agreement as he interpreted it "didn't seem to be threatening... I had no objection." TR 31 1. Defendant's contention must fail.

   Goodfaith

   Defendant contended that Mr. Domingo showed a good faith effort to comply with the Conciliation Agreement. As noted, these efforts, which consisted of contacting the sources in person, did not begin until the enforcement proceedings had essentially begun, and are not relevant to Mr. Domingo's actions before October 31, 1992. However, it may be useful to the Secretary in determining whether to accept this Recommended Decision, and to the parties, to comment upon some of the evidence presented.

   At the point Mr. Domingo said he realized he had a problem, in late February or early March 1993, he undertook to personally visit the three sources. He met with Ms. Daly of Mi Casa and was unable to meet with representatives either of the Northeast Women's Center or the local Job Service Center. A representative of the Job Service Center testified that it does not accept on-going job listings. TR 375-376. There was no evidence of the policy of the Northeast Women's Center. Ms. Daly testified very credibly regarding Mi Casa. She said they do accept on-going listings (TR 383) but explained why she did not (and presumably would not) refer women to defendant:

I can't remember exactly what I said, but I do remember that the skill requirements were such that I was concerned that we would have anybody come through with that level of experience. He mentioned that he definitely preferred experience, about 12 months experience in the things that were listed on that experience list. [TR 385.]

(This is the part of the conversation that Mr. Domingo focused on: "Her immediate response, her verbal response to me is, what makes you think I would have somebody who could do this kind of work?" TR 331.) She continued:

[I did not refer anybody for] A couple of reasons. The first reason is I never had anybody come through after we spoke with this specific experience.

Q: What do you mean?

A: The job experience information on this checklist. The other reason is more of a

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philosophy reason. I don't want to go too deep into that, but one of our philosophies in placing women into non-traditional occupations is to try to place them in employment that will be an environment that is one in which they can succeed.

Part of the criteria that we use is how interactive the employer is with us, and one of the things I did discuss at our initial meeting is that we do work closely with employers in our program, and I did discuss with Mr. Domingo that we, on the fourth or fifth of the program, depending on the particular schedule, that we invite employers to come in and interact with our clients and be part of a mini-job fair that they have.

I extended the invitation. I asked him to consider it. When we don't get any positive response, it's definitely not like the first employer that we would consider referring somebody to. [TR 386-387.]

   I find that until February or March 1993, until Mr. Domingo's attempt to meet with the sources, he had a reasonable belief that an on-going listing with the sources would fulfill his obligation under the Conciliation Agreement. At that time however, when he met resistance with his attempts to meet personally with two of the sources, and had the meeting described with Ms. Daly, he became aware, or should have become aware, that the attempts at on-going listings were insufficient.

   I infer from Mr. Domingo's demeanor at the hearing, as well as from his statements and the testimony of Alice Daly, that he was not enthusiastic about hiring women. His lack of enthusiasm is evidenced, for example, by his failure to attend an optional construction conference conducted by OFCCP with reference to a federal prison project on which ASI worked. TR 219-220, 370. He also did not volunteer to attend the mini-job fairs Mi Casa offered. TR 386-387. But enthusiasm is not required; reasonable effort to perform the acts mandated by law is. I find that Mr. Domingo intended to perform what was required, but no more.

   For the same reason I believe that Mr. Domingo would do what is required in the future if he clearly understands it. Accordingly, with slight modifications (inter al., to remove references to race and to § 503), 1 recommend below the adoption of the third prayer for relief of plaintiff's complaint.

   I recommend that defendant not be debarred or otherwise sanctioned on the following conditions:

   A&S is required to file at least six progress reports at 30-day intervals, beginning 30 days from the date the final Administrative Order becomes effective (see 41 CFR § 60-30.37), and continuing until such time thereafter as A&S satisfies the Deputy Assistant Secretary for Federal Contract Compliance Programs that it has undertaken efforts to

comply with the Conciliation Agreement of June 15, 1992 and is currently in compliance with the provisions of the Executive Order and the regulations promulgated thereunder. Each such report should include:

    a. a list of any and all job openings at A&S during the previous 30-day period;

    b. documentation that A&S notified the three recruitment sources listed in the Conciliation Agreement of each such job opening at the time the company decided to fill each opening;

    c. documentation of the response of each source to each such notice;

    d. a list of any and all applicants for each such opening, identifying each applicant by race, gender, and referral source;

    e. a list of persons hired for each such opening, identifying each hire by gender and referral source;

    f. Documentation of any additional affirmative action efforts made by A&S to recruit women for the carpenter and labor trades (as those terms are used by A&S).

    In addition, the first such report should include documentation that A&S has established linkage agreements with the Northeast Women's Center and Mi Casa Women's Resource Center.

          Thomas Schneider
          Administrative Law Judge

San Francisco, California