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1.20 (b). As a legal mattter, the action taken by the Laboratory to correct "administrative errors," which it has not described to OFCCP, is clearly unrelated to any EEO efforts and thus, beyond OFCCP's authority, notwithstanding the fact that some or all of the beneficiaries are minorities or women. In this regard, OFCCP has not been furnished with a copy of the release the Laboratory proposes to obtain in exchange for correction of the errors. It may contain On the other hand, if is does, it would

no EEO language.

suggest that OFCCP's original allegation was correct but

the agency

some how has been outwitted by the Laboratory.

A second problem associated with the discrimination question is that the Laboratory's commitment to make pay adjustments is not intended by the parties to the conciliation agreement to be binding in the sense that OFCCP could seek sanctions for the Laboratory's default. We also ques

tion the prudence of including the language concerning the prospective salary adjustments, even though the language contains some suggestion that this adjustment is EEO-related. Insertion of this language raises questions about the adequacy of OFCCP's investigation. Why, for example, were the problems not uncovered by OFCCP's lengthy investigation of the Laboratory's salary practices? In addition, OFCCP has no knowledge

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of the scope of the errors or comprehensiveness of the

remedy. But by including the remedy in the agreement OFCCP
at a minimum acquiesces in the remedy as a discharge of
the Laboratory's obligation.

Section

C. The FCCM provides a standard format for the "Part I:
General Provisions" of every conciliation agreement.
8-130 and Figure 8-12. Paragraph 8, of the standard format
contains the "mandatory" binding enforcement language.
OFCCP Policy Directive No. 650c6 (March 11, 1983) permits
ARAS to add, but not delete, language from the standard
format provisions of conciliation agreements except for
the mandatory enforcement clause. However, any changes

must not alter the terms or intent of the standard format
language. This directive is consistent with OFCCP's objec-
tive of assuring uniformity in its conciliation agreements.

Many portions of the Los Alamos proposed conciliation agree-
ment deviate, substantially in some respects, from the
standard format. OFCCP has been provided with no justifica-
tion for the deviations and, therefore, we recommend that
the standard language be adhered to in all respects. (Our
specific comments on the proposed changes are in Section.

لا

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,1, infra.) Furthermore, the proposed conciliation agreement does not contain all the mandatory enforcement clause language and those portions that have been adopted are modified. In light of Castillo v. Usery, we consider any deviation in the mandatory language should be carefully examined and an adequate justification for the chatge should be present.

III.

The numbering of our comments in this section coincides with the provisions in the conciliation agreement.

A. Part I, Paragraph 2, third line from bottom: We suggest that "job titles" be changed to "job titles and/or job series" to include coverage of Deficiency Nos. 12 and 13.

B.

Part I, Paragraph 2: We suggest inclusion of language referencing Deficiencles No. 15.

C. Part I, Paragraph 3: The first sentence is self-serving and is not necessary in this type of document. The Laboratory's legal concerns are already met by the "nonadmission of

any violation" language in the next sentence of the paragraph. If, however, it must remain in the agreement, we recommend deleting the words "vigorously" and "in any manner whatsoever.

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The second paragraph of Paragraph 3 contains a material modification of FCCM Section 8.130.2d and is inconsistent with OFCCP Order No. 650c. In particular, the change of "identified problem areas" to "all questions of compliance" substantially enlarges the scope of the matters which OFCCP will "deem resolved." As a legal matter, OFCCP should not be agreeing to findings of compliance for areas it has not investigated during the review. For example, if it comes to OFCCP's attention that the Laboratory may be discriminating in its terminations or disciplinary actions, the proposed language, if accepted, may operate as a barrier to OFCCP's right to conduct an investigation and obtain an adequate remedy for any violations. By the same token, references to the Rehabilitation Act and to the Vietnam Era Veterans' Readjustment Assistance Act should be deleted because it appears that the compliance review was limited to the Executive Order and, in any event, the identified deficiencies related only to the Executive Order.

Finally, the proposal drops the sentence putting the Laboratory on notice that the agreement does not preclude future determination of noncompliance based on a finding that the commitments are insufficient to achieve compliance. The regulations, at 41 CFR 60-1.20 (b), require that the

contractor be notified about future determinations of noncompliance. Notwithstanding the fact that a contractor may be on notice by virtue of the regulations, to avoid future legal problems about sufficiency of notice, OFCCP should include the language in every conciliation agreement.

problems

D. Part I, Paragraph 4: The insertion of words such as "reasonable" and "appropriate" could lead in interpretation at a later time. The use of the word "appropriate," rather than "reasonable," to qualify "notice" is particularly ambiguous. We suggest their deletion. Also, part of the standard format language has been deleted relating to inspection of the premises. We recommend including this.

E. Part I, Paragraph 6: We recommend inclusion of the phrase "or any other equal employment statute or Executive Order," which has been deleted from the standard format language.

F.

Part I, Paragraph 8: We recommend the insertion of the mandatory enforcement clause language as it appears in FCCM Section 8.130.3.

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