[ v05 p373 ]
05:0373(50)CA
The decision of the Authority follows:
5 FLRA No. 50
DEPARTMENT OF HEALTH, EDUCATION
AND WELFARE, OFFICE OF CIVIL
RIGHTS, REGION VI, DALLAS, TEXAS /1/
Respondent
and
LOCAL 266, NATIONAL FEDERATION
OF FEDERAL EMPLOYEES
Charging Party
Case Nos. 6-CA-9
6-CA-44
6-CA-45
6-CA-51 /2/
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED HIS RECOMMENDED DECISION AND
ORDER IN THE ABOVE-ENTITLED PROCEEDING FINDING THAT THE RESPONDENT HAD
ENGAGED IN CERTAIN UNFAIR LABOR PRACTICES AND HAD NOT ENGAGED IN OTHERS
UNDER EXECUTIVE ORDER 11491, AS AMENDED. THE GENERAL COUNSEL FILED
EXCEPTIONS TO THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND
ORDER AND THE RESPONDENT FILED AN OPPOSITION THERETO. ADDITIONALLY, THE
GENERAL COUNSEL FILED A MOTION TO STRIKE CERTAIN STATEMENTS MADE IN THE
RESPONDENT'S OPPOSITION.
THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT RELATIONS, UNDER EXECUTIVE ORDER 11491, AS AMENDED,
WERE TRANSFERRED TO THE AUTHORITY UNDER SECTION 304 OF REORGANIZATION
PLAN NO. 2 OF 1978 (43 F.R. 36040), WHICH TRANSFER OF FUNCTIONS IS
IMPLEMENTED BY SECTION 2423.1 OF THE AUTHORITY'S RULES AND REGULATIONS
(5 CFR 2423.1). THE AUTHORITY CONTINUES TO BE RESPONSIBLE FOR THE
PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN SECTION 7135(B) OF THE
STATUTE.
THEREFORE, PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND
REGULATIONS AND SECTION 7135(B) OF THE STATUTE, THE AUTHORITY HAS
REVIEWED THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE HEARING
AND FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED. THE RULINGS ARE
HEREBY AFFIRMED. THE AUTHORITY HAS CONSIDERED THE ADMINISTRATIVE LAW
JUDGE'S RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THIS
CASE, INCLUDING THE EXCEPTIONS FILED AND THE RESPONDENT'S OPPOSITION
THERETO. THE AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S
FINDINGS, CONCLUSIONS AND RECOMMENDATIONS ONLY TO THE EXTENT CONSISTENT
HEREWITH. /3/
THE ADMINISTRATIVE LAW JUDGE FOUND THAT RESPONDENT HAD NOT, AS
ALLEGED, VIOLATED SECTION 19(A)(2) AS A RESULT OF ITS FAILURE TO SELECT
THREE INDIVIDUALS FOR THE POSITIONS OF SUPERVISORY EQUAL OPPORTUNITY
SPECIALIST, GS-160-13. THE CHARGING PARTY HAD CONTENDED THAT THE REASON
FOR THE NON-SELECTIONS WAS UNION ANIMUS. THE ADMINISTRATIVE LAW JUDGE
FOUND THAT THE EVIDENCE DID NOT SUPPORT A CONCLUSION THAT UNION
CONSIDERATIONS PLAYED A PART IN THE SELECTIONS INVOLVED. THE AUTHORITY
AGREES. HOWEVER, THE AUTHORITY FINDS, CONTRARY TO THE ADMINISTRATIVE
LAW JUDGE, THAT THE ALLEGED VIOLATION OF SECTION 19(A)(1) AS A RESULT OF
CERTAIN REMARKS MADE CONCERNING THE PRO-UNION ORIENTATION OF THE THREE
ALLEGED DISCRIMINATES BY AN INTERVIEW PANEL CONSISTING OF THREE
MANAGEMENT REPRESENTATIVES, WHICH WAS CONDUCTED IN CONJUNCTION WITH THE
SELECTION PROCESS HAS NOT BEEN ESTABLISHED. IN THIS REGARD, THE
AUTHORITY NOTES THAT THIS LATTER CONDUCT OF THE RESPONDENT WAS NOT
ALLEGED IN EITHER THE CHARGE OR COMPLAINT AS VIOLATIVE OF THE ORDER.
MOREOVER, THE AUTHORITY DOES NOT VIEW THE MATTER AS HAVING BEEN
LITIGATED AS A VIOLATION AT THE HEARING.
AS NOTED EARLIER, THE GENERAL COUNSEL MOVED TO STRIKE SEVERAL
STATEMENTS MADE BY THE RESPONDENT IN ITS OPPOSITION TO THE GENERAL
COUNSEL'S EXCEPTIONS. THE GENERAL COUNSEL ARGUED THAT SUCH STATEMENTS
CONSTITUTED EX PARTE EVIDENCE. THE GENERAL COUNSEL'S MOTION IS HEREBY
GRANTED EXCEPT INSOFAR AS IT RELATES TO INFORMATION PROVIDED CONCERNING
THE ESTABLISHMENT OF THE DEPARTMENT OF EDUCATION AND THE REDESIGNATION
OF THE DEPARTMENT OF HEALTH, EDUCATION AND WELFARE AS THE DEPARTMENT OF
HEALTH AND HUMAN SERVICES.
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINTS IN AUTHORITY CASE NOS.
6-CA-9, 6-CA-44 AND 6-CA-45 BE, AND THEY HEREBY ARE, DISMISSED IN THEIR
ENTIRETY.
ISSUED, WASHINGTON, D.C., MARCH 20, 1981
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
THOMAS C. LONG
REGIONAL LABOR RELATIONS OFFICER
DEPARTMENT OF HEALTH, EDUCATION
AND WELFARE
MAIN TOWER BUILDING, ROOM 1000
1200 MAIN STREET
DALLAS, TEXAS 75202
FOR THE RESPONDENT
STEVEN M. ANGEL, ESQ.
FEDERAL LABOR RELATIONS AUTHORITY, REGION VI
DOWNTOWN POST OFFICE STATION
P.O. BOX 2640
DALLAS, TEXAS 75221
FOR THE GENERAL COUNSEL
BEFORE: ELI NASH, JR.
ADMINISTRATIVE LAW JUDGE
DECISION AND ORDER
STATEMENT OF THE CASE
PURSUANT TO AN ORDER CONSOLIDATING CASES, CONSOLIDATED COMPLAINT AND
NOTICE OF HEARING ISSUED ON JULY 31, 1979 BY THE REGIONAL DIRECTOR,
REGION VI, FEDERAL LABOR RELATIONS AUTHORITY, A HEARING WAS HELD BEFORE
THE UNDERSIGNED ON OCTOBER 23 AND 24, 1979 AT DALLAS, TEXAS. /5/
THE CONSOLIDATED COMPLAINTS BASED ON CHARGES FILED BY NATIONAL
FEDERATION OF FEDERAL EMPLOYEES (NFFE), LOCAL 266 (HEREINAFTER CALLED
THE UNION) /6/ ALLEGE THAT THE DEPARTMENT OF HEALTH, EDUCATION AND
WELFARE, OFFICE OF CIVIL RIGHTS, REGION VI, DALLAS (HEREINAFTER CALLED
RESPONDENT) VIOLATED SECTION 19(A)(2) AND (1) OF EXECUTIVE ORDER 11491,
AS AMENDED BY FAILING AND REFUSING TO PROMOTE EMPLOYEES GEORGE D. COLE,
HECTOR M. FLORES AND JAY ASKEW THEREBY DISCOURAGING MEMBERSHIP IN THE
UNION.
BOTH PARTIES WERE REPRESENTED AT THE HEARING, WERE AFFORDED FULL
OPPORTUNITY TO BE HEARD, TO ADDUCE EVIDENCE AND TO EXAMINE AS WELL AS
CROSS-EXAMINE WITNESSES. THEREAFTER, BOTH PARTIES FILED BRIEFS WHICH
HAVE BEEN DULY CONSIDERED.
UPON THE ENTIRE RECORD HEREIN, FROM MY OBSERVATION OF THE WITNESSES
AND THEIR DEMEANOR, AND FROM ALL OF THE TESTIMONY AND EVIDENCE ADDUCED
AT THE HEARING, I MAKE THE FOLLOWING FINDINGS AND CONCLUSIONS:
FINDINGS OF FACT
AT ALL TIMES MATERIAL HEREIN THE UNION HAS BEEN AND STILL IS THE
COLLECTIVE BARGAINING REPRESENTATIVE OF RESPONDENT'S DALLAS REGIONAL
EMPLOYEES.
THE MATERIAL FACTS AND CHRONOLOGY OF EVENTS ARE NOT IN DISPUTE NOR IS
THERE ANY QUESTION OF THE SELECTING OFFICIALS PREROGATIVES TO SELECT ANY
CANDIDATE OR CANDIDATES FROM THE "BEST QUALIFIED" LIST. THE GOVERNING
REGULATIONS AND PROCEDURES PERTAINING TO SUCH PREROGATIVES ARE CONTAINED
IN FPM CHAPTER 335 AND THE REGIONAL MERIT PROMOTION PLAN WHICH PROVIDES
IN PERTINENT PART:
"SELECTING OFFICIALS ARE ENTITLED TO MAKE SELECTIONS FROM ANY OF THE
CANDIDATES ON A
PROMOTION CERTIFICATE, WHETHER OR NOT THE CANDIDATES ARE IN RANK
ORDER, BASED ON THEIR
JUDGEMENT OF HOW WELL THE CANDIDATE WILL PERFORM IN THE PARTICULAR
JOB BEING FILLED." FURTHER, SECTION X OF RESPONDENT'S MERIT PROMOTION
PLAN ALSO SETS OUT IN DEFINITIVE DETAIL THE RIGHT OF THE SELECTING
OFFICIAL TO SELECT FROM ANY OF THE CANDIDATES REFERRED. THE DISPUTE
HEREIN AROSE SPECIFICALLY OVER THE PANEL INTERVIEW PROCESS AND THE
SELECTION PROCEDURES UTILIZED BY THE ALLEGED SELECTING OFFICIAL DR. JOHN
BELL.
ON OR ABOUT OCTOBER 30, 1978, RESPONDENT ISSUED VACANCY ANNOUNCEMENT
NO. 475-78 FOR FOUR (4) POSITIONS OF SUPERVISORY EQUAL OPPORTUNITY
SPECIALIST, GS-160-13, IN ITS ELEMENTARY AND SECONDARY EDUCATION
DIVISION. OF THE MANY APPLICANTS APPLYING FROM THE GS-12 LEVEL
APPROXIMATELY FIFTEEN WERE SUCCESSFUL IN BEING PLACED ON THE "BEST
QUALIFIED" LIST FOR REFERRAL TO THE SELECTING OFFICIAL. IN ADDITION,
SEVEN OTHER APPLICANTS WHO WERE ELIGIBLE FOR REASSIGNMENT OR CHANGE TO
LOWER GRADES ALSO APPLIED FOR THE VACANCIES. THEREFORE, OVER 20
CANDIDATES TOGETHER WITH SUPPORTING DOCUMENTATION WERE SUBMITTED ON THE
CERTIFICATE OF ELIGIBLES FOR NO. 475-78 DATED NOVEMBER 9, 1978.
THE BASIC QUALIFICATIONS WERE ROUTINELY DETERMINED THROUGH USE OF A
PANEL OF THREE EMPLOYEES USING WEIGHTS AND FACTORS PRESCRIBED BY THE
REGIONAL MERIT PROMOTION PLAN AND EACH INDIVIDUAL APPLICANT WAS ASSIGNED
AN AVERAGE SCORE AND A RANK ORDER BY A PERSONNEL STAFFING SPECIALIST.
COMPLAINANTS COLE, ASKEW AND FLORES WERE RANKED 1, 2 AND 6 RESPECTIVELY
FROM AMONG APPROXIMATELY 15 CANDIDATES. THE INDIVIDUAL SELECTED TO FILL
THE POSITIONS WERE RANKED 4, 5, 7 AND 9, RESPECTIVELY.
THE RECORD DEMONSTRATES THAT THE SELECTIONS WERE MADE SHORTLY AFTER A
PERIOD OF SEVERELY DETERIORATING LABOR RELATIONS BETWEEN LABOR AND
MANAGEMENT BEGINNING ABOUT JANUARY 1978 DURING A PLANNED REORGANIZATION
INVOLVING VARIOUS HEALTH, EDUCATION AND WELFARE REGIONS INCLUDING THE
RESPONDENT. THE UNION ACTIVITIES OF THE THREE DISCRIMINATES IS
DOCUMENTED AND THEIR LEADERSHIP ROLES SET OUT IN THE RECORD.
GEORGE COLE PARTICIPATED IN DRAFTING A LETTER, WHICH WAS SIGNED BY
THEN UNION PRESIDENT OLSEN, /7/ TO SECRETARY OF HEALTH, EDUCATION AND
WELFARE CALIFANO COMPLAINING OF MANAGEMENTS ACTIONS INVOLVING THE
REORGANIZATION. THE EVIDENCE ESTABLISHED THAT THEN REGIONAL DIRECTOR
DOROTHY STUCK WAS NOT PLEASED WITH THIS ACTION BY THE UNION. FOLLOWING
THIS LETTER, PERIODIC LABOR-MANAGEMENT MEETING WERE SCHEDULED BY STUCK
WHICH FLORES, COLE AND ASKEW ATTENDED AS UNION REPRESENTATIVES AT ONE
TIME OR ANOTHER.
DR. JOHN BELL, BRANCH CHIEF OF THE OFFICE OF CIVIL RIGHTS, AND THE
SELECTING OFFICIAL IN THE PROMOTIONS INVOLVED HEREIN WAS OFTEN NAMED AS
THE MANAGEMENT OFFICIAL INVOLVED WHEN GRIEVANCES WERE FILED. DR. BELL
CLEARLY INDICATED, HIS DISPLEASURE AT HAVING GRIEVANCES FILED AGAINST
HIM. FURTHER, ON ONE OCCASION BELL TOLD COLE THAT HE DID NOT WANT THE
UNION INTERFERING WITH MANAGEMENT-EMPLOYEE RELATIONSHIP. SPECIFICALLY,
BELL TOLD COLE THAT HE HAD NO RIGHT TO TALK TO EMPLOYEES, BUT THAT
ADVISE AND COUNSEL WAS THE RESPONSIBILITY OF BELL. COLE RESPONDED THAT
HE WAS ACTING IN HIS ROLE AS UNION STEWARD. FURTHERMORE, BELL TOLD COLE
THAT HE DID NOT WANT ANY GRIEVANCES FILED AGAINST HIM PERIOD.
DURING THIS SAME PERIOD A PROBLEM WAS RAISED REGARDING THE DISCHARGE
OF EIGHT (8) PROBATIONARY EMPLOYEES FROM DR. BELL'S SHOP. THESE
DISCHARGES RESULTED IN THE FILING OF GRIEVANCES TO OBTAIN INFORMATION
CONCERNING BOTH THE DISCHARGES AND THE PLANNED REORGANIZATION. ALTHOUGH
CLEAR FROM THE RECORD THAT THESE DISCHARGES WERE SUBSEQUENTLY CARRIED
OUT, A MEETING IN WHICH COLE AND ASKEW AND SEVERAL MANAGEMENT OFFICIAL
INCLUDING BELL OCCURRED. APPARENTLY, AT THE ABOVE MEETING BELL WAS
QUESTIONED BY COLE AND ASKEW RATHER THOROUGHLY REGARDING THESE ACTIONS.
A COPY OF RESPONDENT'S POSITION CLASSIFICATION AND PERSONNEL
MANAGEMENT REVIEW-- REGIONAL OFFICE FOR CIVIL RIGHTS, DALLAS REGION
SHOWS THE CLIMATE FOR LABOR RELATIONS DURING THIS PERIOD. THE REPORT
STATES IN PART:
A. BACKGROUND: AS A PART OF THE EMPLOYEE RELATIONS INTERVIEWS THREE
OCR UNION STEWARDS
WERE ALSO INTERVIEWED. FOR APPROXIMATELY THE LAST 18 MONTHS THE
MAJORITY OF THE OFFICERS IN
NFFE LOCAL 266 HAVE BEEN FROM OCR. FROM JUNE 1978 TO MARCH 1979 THE
LABOR-MANAGEMENT
RELATIONSHIP IN OCR CHANGED FROM ONE OF OPEN TWO-WAY COMMUNICATION TO
ONE OF CONSTANT
CONFRONTATION AND CHALLENGE. THERE WERE SEVERAL FACTORS WHICH
IMPACTED ON THIS
RELATIONSHIP: THE INCREASED WORKLOAD PRESSURE TO CLOSE AS MANY CASES
AS POSSIBLE PRIOR TO THE
CLOSE OF FY 78, THE TRANSFER OF EIGHT (8) SLOTS TO DOL, THE
TERMINATION OF EIGHT (8)
PROBATIONARY TRIAL PERIOD EMPLOYEES, THE PLANNING AND IMPLEMENTATION
OF THE OCR REORGANIZATION
THE FILLING OF THE GS-13 BRANCH CHIEF JOBS. THE REPORT ALSO NOTES AT
P. 25:
(2) COMMUNICATIONS: THE UNION ALSO FEELS THAT THERE IS NOT AN
EFFECTIVE MEANS OF
COMMUNICATION BETWEEN OCR MANAGEMENT AND UNION OFFICIALS. WHILE
REGULARLY SCHEDULED
CONSULTATION SESSIONS WERE BEGUN DURING EARLY 1978, SUCH SESSIONS
WERE DISCONTINUED DURING
AUGUST 1978 AND THE RELATIONSHIP DETERIORATED TO ONE OF CONFRONTATION
AND MEMO WRITING WITH
THE UNION FILING VARIOUS GRIEVANCES AND ULP PRE-COMPLAINT CHARGES
AGAINST OCR
MANAGEMENT. THIS DETERIORATION WAS FELT TO BE PRIMARILY RESULTS OF
OCR MANAGEMENT'S LACK OF
ABILITY TO ADEQUATELY DEAL WITH AGGRESSIVE UNION OFFICIALS WHICH WAS
MANIFESTED BY AN APPARENT
ANTI-UNION ATTITUDE WHICH RESULTED IN A REDUCTION OF INTERPERSONAL
COMMUNICATIONS BETWEEN
MANAGEMENT AND THE UNION. FINALLY, THE REPORT STATED:
(5) RECENT LMR ACTIVITIES: IT SHOULD ALSO BE POINTED OUT THAT SINCE
THE NEW RD HAS ARRIVED
(MARCH 1979) THERE HAS BEEN A NOTICEABLE IMPROVEMENT IN THE LMR
WITHIN OCR. THIS OBSERVATION
IS BASED ON THE FEEDBACK FROM THE INTERVIEWS WITH THE UNION STEWARDS
AS WELL AS CONTACT WITH
OTHER UNION OFFICIALS. THE NEW RD'S MANAGEMENT STYLE AND METHOD OF
DEALING WITH UNION IS
MARKEDLY DIFFERENT FROM THE PREVIOUS RD. THE MAJORITY OF THE LMR
PROBLEMS HAVE BEEN RESOLVED
AND THE MANAGEMENT-UNION RELATIONSHIP AT THIS TIME IS MUCH IMPROVED
COMPARED TO WHAT IT WAS IN
MARCH 1979 WHEN THE NEW RD CAME ON BOARD.
AGAINST THIS BACKGROUND, ABOUT 20 CANDIDATES FOR THE POSITIONS WERE
INTERVIEWED ON NOVEMBER 14, 1979 BY A PANEL OF REGIONAL DIRECTORS
CONSISTING OF VIRGINIA APODACA (FORMERLY BALDERAMA), DEWEY DODDS AND
TAYLOR AUGUST, WHO AT THE TIME OF THE INSTANT HEARING HAD BEEN APPOINTED
REGIONAL DIRECTOR IN DALLAS. THIS PANEL WAS THE FIRST SUCH PANEL
CONVENED IN CONNECTION WITH PROMOTIONS IN DALLAS. WHILE IT APPEARS THAT
THERE WAS INTERNAL RESISTANCE TO THE PANEL THE REGIONAL DIRECTOR FELT
THAT IT WOULD HELP IN THE SELECTION PROCESS AND INSISTED ON ITS USE.
FURTHER THIS TYPE PANEL IS APPARENTLY USED IN OTHER REGIONS ON A REGULAR
BASIS.
ON THE INTERVIEW REPORT FORMS, REGIONAL DIRECTOR TAYLOR AUGUST MADE
THE FOLLOWING COMMENT REGARDING HECTOR FLORES:
EXTREMELY LABOR ORIENTED-- TRANSITION FROM PRO-UNION WOULD BE
DIFFICULT FOR APPLICANT. REGIONAL DIRECTOR DEWEY DODDS MADE SIMILAR
REMARKS TO THE EFFECT THAT:
QUESTIONABLE AS TO HOW WELL HE COULD MOVE FROM LABOR ADVOCATE TO
MANAGEMENT ROLE. WITH REGARD TO COLE, DEWEY DODDS NOTED:
HAS POTENTIAL-- IF HE COULD BE TRANSFERRED INTO BECOMING A MANAGEMENT
ADVOCATE, THE WAY HE
WAS A MANAGEMENT CRITIC. FURTHER, REGIONAL DIRECTOR VIRGINIA APODACA
STATED:
THIS CANDIDATE IS A STRONG EMPLOYEE ADVOCATE; DID NOT DEMONSTRATE
THAT HE COULD MAKE
SUCCESSFUL TRANSITION TO A NEW ROLE. CONCERNING ASKEW, DEWEY DODDS
OBSERVED:
WANTS TO BE AN ADVISOR TO STAFF RATHER THAN SUPERVISE.
ACCORDING TO DR. BELL, WHO MADE THE SELECTIONS FOR THE FOUR (4)
SUPERVISORY POSITIONS, HE HAD NO KNOWLEDGE OF THE RATING AND RANK
ASSIGNED TO THE APPLICANTS BY THE RATING PANEL AND THE PERSONNEL OFFICE.
HE TESTIFIED THAT HE WAS IN TRAVEL STATUS THE WEEK THE APPLICANTS WERE
INTERVIEWED BY THE INTERVIEW PANEL AND THAT UPON HIS RETURN TO THE
OFFICE ON MONDAY, NOVEMBER 20 HE WAS GIVEN THE UNRANKED CERTIFICATE OF
ELIGIBLES AND THE APPLICATIONS. ON NOVEMBER 2, HE SELECTED RICHARD W.
GONZALES, ELNORA DUNCAN, TED CRIM AND MAXEY MARSHALL FOR THE POSITIONS.
DR. BELL TESTIFIED THAT HE DID NOT CONSIDER THE INTERVIEW REPORT FORMS
OF THE INTERVIEW PANEL ALTHOUGH DIRECTED TO DO SO BY REGIONAL DIRECTOR
STUCK, SINCE HE CONSIDERED THAT PROCESS TO BE A WASTE IN THIS PARTICULAR
CASE AS HE WAS VERY FAMILIAR WITH THE SKILLS, KNOWLEDGE AND ABILITIES OF
EACH OF THE APPLICANTS BASED ON 3 TO 9 YEARS OF EXPERIENCE EITHER
WORKING WITH OR SUPERVISING THE APPLICANTS. DR. BELL FURTHER INDICATED
THAT AFTER MAKING HIS DECISION ON THE SELECTIONS HE WAS GIVEN THE
INTERVIEW REPORT PACKAGE TO REVIEW BUT THAT HE ONLY "GLEANED" THE
PACKAGE AND EVEN THOUGH HE COULD HAVE REVISED HIS INITIAL SELECTIONS, HE
DID NOT CHOOSE TO DO SO. FINALLY, HE TESTIFIED THAT HE DID NOT NOTICE
THE REMARKS ON THE INTERVIEW REPORT FORM OF GEORGE COLE OR HECTOR FLORES
WHICH HAD UNION OVERTONES AND DID NOT KNOW OF THESE REMARKS UNTIL THE
UNFAIR LABOR PRACTICE CHARGES WERE FILED IN THE CASE.
DR. BELL TESTIFIED THAT HE RATED EACH APPLICANT AGAINST ESTABLISHED
CRITERIA SUCH AS JOB KNOWLEDGE; WRITING SKILLS; MOTIVATION;
FELLOWSHIP AND LEADERSHIP; ORAL SKILLS; ABILITY TO ANALYZE DATA;
TEAMSHIP; ABILITY TO ORGANIZE WORK AND SET PRIORITIES; INTERPERSONAL
RELATIONS SKILLS; ABILITY TO TRAIN STAFF; AND, ADDITIONAL FORMAL
TRAINING.
AT THE HEARING DR. BELL ANALYZED THE ESTABLISHED CRITERIA AGAINST THE
STRENGTHS AND WEAKNESSES OF EACH OF THE DISCRIMINATES. WITH REGS. TO
COLE, WHO HE RATED AS OUTSTANDING IN THE AREA OF JOB KNOWLEDGE, DR. BELL
FOUND HIM ABRASIVE AND WITH DIFFICULTY IN FOLLOWING DIRECTION.
ACCORDING TO DR. BELL, COLE'S DIFFICULTY IN INTERFACING WAS NOT RELATED
TO THE UNION. HE FURTHER TESTIFIED THAT COLE HAD DIFFICULTY IN RELATING
TO HIM AS A SUPERVISOR.
MR. ASKEW, ACCORDING TO DR. BELL HAD STRENGTH IN INTERPERSONAL
RELATIONS BUT WEAKNESSES IN JOB KNOWLEDGE, WRITING SKILLS, MOTIVATION OF
STAFF AND ABILITY TO TRAIN. HE NOTED THAT BOTH ASKEW AND HECTOR FLORES
WERE GENERALLY WEAKER THAN THE OTHER PERSONS WHO APPLIED FOR THE
SUPERVISORY POSITIONS.
MR. FLORES ACCORDING TO DR. BELL HAD EXTREME WEAKNESS IN JOB
KNOWLEDGE AND APPLICATION OF KNOWLEDGE, EXTREME WEAKNESS IN WRITING
SKILLS AND IN THE AREA OF ANALYSIS AND DRAWING A PROPER AND REASONABLE
CONCLUSION. HE FURTHER NOTED A LACK OF MOTIVATION EXCEPT AS TO OUTSIDE
WORK. DR. BELL ADDED THAT HE COULD NOT THINK OF A STRENGTH OF FLORES
EXCEPT IN THE AREA OF OUTSIDE ACTIVITIES.
WHILE DR. BELL TESTIFIED THAT THESE EMPLOYEES HAD BEEN COUNSELLED AS
TO THEIR VARIOUS WEAKNESSES, THERE IS NO RECORD EVIDENCE OF THESE
EMPLOYEES BEING DIRECTLY TOLD BY DR. BELL THAT THEIR WORK REQUIRED
IMPROVEMENT IN ANY SPECIFIC AREA. HOWEVER, THERE IS TESTIMONY BY MR.
JAMES C. MCCLURE, REGARDING COUNSELLING TO BOTH FLORES AND COLE
CONCERNING AT LEAST SOME OF THE WEAKNESSES MENTIONED BY DR. BELL.
SUBSEQUENTLY, THREE ADDITIONAL SUPERVISORY JOBS BECAME AVAILABLE
GEORGE COLE WAS SELECTED TO ACT IN AN ACTING BRANCH CHIEF CAPACITY IN
MAY 1979 AND WAS PROMOTED TO BRANCH CHIEF AFTER THE POSITIONS WERE
POSTED IN OCTOBER 1979. FLORES AND ASKEW AGAIN APPLIED BUT WERE
NON-SELECTED BY DR. BELL.
DISCUSSION AND CONCLUSIONS
THE LAW IS CLEAR THAT WHEN ANTI-UNION CONSIDERATIONS RESULT IN THE
NON-SELECTION OF AN EMPLOYEE FOR A PROMOTION, A VIOLATION OF SECTION
19(A)(2) AND (1) OF THE EXECUTIVE ORDER, AS AMENDED, IS ESTABLISHED.
HEW, SOCIAL SECURITY ADMINISTRATION, SAN JUAN, PUERTO RICO, A/SLMR NO.
1127; VETERANS ADMINISTRATION CENTER, LEAVENWORTH, KANSAS, 1 FLRA 111.
FURTHERMORE, WHERE AGENCY MANAGEMENT HAS DISCRIMINATORILY AFFECTED
EMPLOYEE TERMS AND CONDITIONS OF EMPLOYMENT BASED ON UNION
CONSIDERATIONS, A VIOLATION WILL BE FOUND EVEN WHERE A LEGITIMATE BASIS
FOR THE MANAGEMENT ACTION EXISTS WHEN UNION CONSIDERATIONS ALSO ARE
SHOWN TO HAVE PLAYED PART. CF. HEW, SOCIAL SECURITY ADMINISTRATION, SAN
JUAN, PUERTO RICO, SUPRA: THE GENERAL COUNSEL HOWEVER, HAS A BURDEN OF
PROVING KNOWLEDGE OF THE EMPLOYEES UNION ACTIVITY AND UNION ANIMUS AS
MOTIVATION FOR THE DISCRIMINATING ACTION.
THE GENERAL COUNSEL CONTENDS THAT THE THREE DISCRIMINATES WERE
INVOLVED IN VOCIFEROUS UNION ACTIVITIES, WERE IN VISIBLE UNION POSITIONS
AND THAT THE NON-SELECTIONS WERE BASED ON THEIR ENGAGING IN PROTECTED
ACTIVITIES. IN ADDITION, THE GENERAL COUNSEL ARGUES THAT THE THREE
INDIVIDUALS, COLE, ASKEW AND FLORES WERE AMONG THE TOP SEVEN INDIVIDUALS
ON THE BEST QUALIFIED LIST IN ORDER OF RANKING, AND THAT BUT FOR THEIR
UNION ACTIVITY, THEY WOULD HAVE BEEN SELECTED FOR SUPERVISORY POSITIONS.
RESPONDENT MAINTAINS THAT EACH OF THESE EMPLOYEES HAD CERTAIN
WEAKNESSES WHICH REFLECTED ON HIS POTENTIAL AS A SUPERVISOR AND THAT
WHEN THESE WEAKNESSES WERE WEIGHED AGAINST THE OTHER CANDIDATES, ITS
SELECTIONS WERE PROPER. IN THIS REGARD, DR. JOHN BELL, THE SELECTING
OFFICIAL IN THIS INSTANCE, TESTIFIED THAT HIS SELECTIONS WERE BASED ON A
SPECIFIC SET OF CRITERIA APPLIED TO EACH OF THE CANDIDATES AND HIS
PERSONAL KNOWLEDGE OF EACH INDIVIDUAL. FURTHER, DR. BELL TESTIFIED THAT
ASKEW AND FLORES WERE WEAKER, WHEN WEIGHED AGAINST THE ESTABLISHED
CRITERIA THAN ANY OF THE OTHER CANDIDATES APPLYING FOR THE SUPERVISORY
POSITIONS.
THAT THERE WAS ANIMUS AGAINST THE UNION IS CLEARLY SHOWN BY THE
RECORD. RESPONDENT'S REPORTS CONFIRM THAT THE LABOR RELATIONS CLIMATE
IN THE DALLAS OFFICE WAS ONE OF CONFRONTATION. HOWEVER, THERE IS REAL
EVIDENCE THAT DESPITE THE POOR LABOR RELATIONS CLIMATE UNION ADHERENT
WERE APPOINTED TO MANAGEMENT POSITIONS. FOR EXAMPLE, FORMER UNION
PRESIDENT OLSEN WAS PROMOTED DESPITE THE FACT THAT HE SIGNED A LETTER
OVER WHICH MS. STUCK ALLEGEDLY BECAME SO INCENSED. IN ADDITION, ELNORA
DUNCAN, A UNION VICE-PRESIDENT WAS PROMOTED DURING THE NOVEMBER
PROMOTIONS.
IN ASSESSING THE EVIDENCE I FIND NO DIRECTION OF ANIMUS AGAINST THESE
EMPLOYEES BECAUSE OF THEIR PARTICIPATION IN EITHER THE "MAD EMPLOYEE"
LETTER OR THE DISMISSAL OF EIGHT (8) PROBATIONARY EMPLOYEES. THESE
SITUATIONS INDICATE ONLY THAT EACH SIDE VIGOROUSLY PURSUED ITS
RESPECTIVE RIGHTS. NOR IS THERE ANY BASIS FOR FINDING THAT THEIR
PARTICIPATION IN MONTHLY LABOR-MANAGEMENT RELATIONS MEETINGS WAS
CONSIDERED IN THE SELECTION PROCESS. SIMPLY BECAUSE PERSONALITIES OF
INDIVIDUALS DO NOT MESH DOES NOT NECESSARILY ESTABLISH A VIOLATION OF
THE ORDER. WHILE IT IS TRUE, AS THE GENERAL COUNSEL URGES, THAT THE
TRIER OF FACT MAY INFER MOTIVE FROM THE TOTAL CIRCUMSTANCES PROVE IT IS
EQUALLY TRUE THAT IN A PROMOTION SITUATION AN ACTIVITY'S HANDS SHOULD
NOT BE TIED SO AS TO PREVENT IT FROM EXERCISING ITS BEST JUDGMENT IN THE
SELECTION OF EMPLOYEES FOR PROMOTION, ABSENT UNION CONSIDERATIONS. IN
SUCH CIRCUMSTANCES, IT IS MY VIEW THAT THE GENERAL COUNSEL MUST
ESTABLISH BY A PREPONDERANCE OF THE EVIDENCE THAT UNION CONSIDERATIONS
PLAYED SOME PART IN THE NON-SELECTION. IN THE INSTANT MATTER, THE
GENERAL COUNSEL HAS NOT MET THAT BURDEN.
CONCERNING GEORGE COLE, THERE IS NO QUESTION THAT MANAGEMENT FELT HIM
TECHNICALLY OUTSTANDING. ITS CONCERN WAS WITH COLE'S ABRASIVE NATURE,
HIS ABILITY TO GET ALONG WITH HIS IMMEDIATE SUPERVISOR DR. BELL, WHO
WOULD HAVE CONTINUED TO BE HIS SUPERVISOR, AND THE DIFFICULTY IN GETTING
HIM TO FOLLOW DIRECTIONS. IN CONSIDERING COLE AGAINST THE STANDARDS
WHICH DR. BELL HAD SET, AND TAKING INTO CONSIDERATION HIS PREVIOUS
OUTSTANDING RATINGS FOR HIS WORK PERFORMANCE, /8/ DESPITE THE FACT THAT
COLE WAS AN ACTIVE UNION ADHERENT, IT IS DIFFICULT TO AGREE WITH THE
GENERAL COUNSEL THAT THE FAILURE TO SELECT COLE FOR ONE OF THE NOVEMBER
POSITIONS STEMMED FROM A DESIRE TO RETALIATE AGAINST HIM FOR ANY
GRIEVANCES WHICH HE HAD FILED OR FOR ANY OTHER PROTECTED ACTIVITY. IN
SHORT, THE FAILURE TO SELECT COLE IS SUPPORTED BY SUBSTANTIAL EVIDENCE.
THERE IS CORROBORATED EVIDENCE OF RECORD THAT HE RESISTED DIRECTIVES AND
AS TO HIS ABRASIVE NATURE, AS EVIDENCED BY HIS CONTACTS WITH THE
INTERVIEW PANEL ON MATTERS UNRELATED TO PROTECT ACTIVITIES. UNDER ALL
THE CIRCUMSTANCES, RESPONDENT COULD WELL HAVE CONCLUDED, AS IT DID, THAT
COLE ALTHOUGH WELL QUALIFIED TECHNICALLY, WAS NOT, AT THAT TIME,
SUPERVISORY TIMBER. THIS CONCLUSION IS BUTTRESSED BY THE FACT THAT COLE
SUBSEQUENTLY WAS GIVEN AN ACTING SUPERVISORY POSITION, AND AFTER SEVERAL
MONTHS OF SATISFACTORY PERFORMANCE IN THAT POSITION PROMOTED TO A BRANCH
CHIEF POSITION IN OCTOBER 1979.
TURNING TO ASKEW AND FLORES, RESPONDENT ARGUES THAT IN ITS VIEW THESE
TWO EMPLOYEES WERE WEAKER, WHEN WEIGHED AGAINST ESTABLISH CRITERIA THAN
ANY OTHER PERSON WHO APPLIED FOR THE SUPERVISORY POSITIONS. /6/ THERE
IS SUBSTANTIAL RECORD EVIDENCE CONCERNING THE WEAKNESS OF FLORES WHICH,
IN MY VIEW, ARE CORROBORATED IN PART BY HIS IMMEDIATE SUPERVISOR
MCCLURE. IN SUM, MANAGEMENT FELT THAT FLORES HAD BELOW AVERAGE
POTENTIAL FOR A SUPERVISORY JOB AND THERE IS NO REASON ON THIS RECORD TO
DISCREDIT THAT POSITION. FURTHERMORE, THERE IS NOT RECORD EVIDENCE OF
ANIMUS DIRECTED AT FLORES BECAUSE OF HIS UNION PARTICIPATION. IN SUCH
CIRCUMSTANCES, IT WOULD NOT BE UNREASONABLE FOR MANAGEMENT TO REACH A
CONCLUSION THAT FLORES SHOULD NOT BE SELECTED FOR A SUPERVISORY
POSITION.
ASKEW, ON THE OTHER HAND, RECEIVED BETTER THAN AVERAGE PERFORMANCE
APPRAISALS BUT WAS CONSIDERED BY DR. BELL TO BE WEAK IN MOTIVATIONAL
SKILLS, WRITING SKILLS, JOB KNOWLEDGE AND ABILITY TO TRAIN. HIS CHIEF
STRENGTH WAS IN INTERPERSONAL RELATIONS. ALSO, DR. BELL TESTIFIED THAT
HE HAD A SUBSTANTIAL PROBLEM IN ONE OF ASKEW'S CASES WHICH REQUIRED HIS
PERSONAL INTERVENTION IN ORDER TO SAVE THE OFFICE CONSIDERABLE
EMBARRASSMENT. WHILE ASKEW WAS THE UNION PRESIDENT AT THE TIME OF HIS
NON-SELECTION, THE RECORD SHOWS THAT A PREVIOUSLY AGGRESSIVE UNION
PRESIDENT HAD BEEN PROMOTED TO A MANAGEMENT POSITION ONLY A SHORT TIME
BEFORE. THIS FACT ALONE LEADS ONE TO BELIEVE THAT MANAGEMENT'S
SELECTION WAS NOT INFLUENCED BY AN EMPLOYEE'S UNION PARTICIPATION. IN
VIEW OF DR. BELL'S APPRAISAL OF ASKEW, IT WOULD NOT HAVE BEEN ILLOGICAL
FOR HIM TO PASS OVER ASKEW FOR SELECTION.
ADMITTEDLY, DR. BELL HAD THE AUTHORITY TO MAKE SELECTIONS. THERE IS
NO RECORD EVIDENCE THAT HE DISCUSSED THE ATTRIBUTES OF COLE, FLORES,
ASKEW WITH ANY OTHER OFFICIAL. NOR DOES THE RECORD ESTABLISH ANY REASON
TO DISCREDIT DR. BELL AS TO HIS BASIS FOR SELECTIONS AND HIS STATEMENT
THAT UNION MEMBERSHIP WAS NOT A CONSIDERATION IN HIS SELECTIONS. BASED
ON ALL OF THE ABOVE, IT IS MY BELIEF THAT DR. BELL THE SELECTING
OFFICIAL MUST BE CREDITED WHEN HE STATES THAT HE APPLIED A SPECIFIC SET
OF CRITERIA TO EACH OF THE CANDIDATES AND THAT HIS SELECTIONS WERE BASED
ON HIS PERSONAL KNOWLEDGE OF EACH OF THE INDIVIDUALS INVOLVED. /10/
WHILE THERE MAY BE SOME MISGIVINGS OR EVEN UNFAIRNESS IN THE METHOD OF
SELECTION, I DO NOT FIND ON THIS RECORD THAT ANY ANTI-UNION SENTIMENTS
OF DR. BELL PLAYED A PART IN HIS SELECTION OF INDIVIDUALS FOR THE
NOVEMBER 1978 POSITIONS.
THE INTERVIEW PANEL
ALTHOUGH THE QUESTION OF THE INTERVIEW PANEL WAS NOT ALLEGED
SPECIFICALLY IN THE COMPLAINT THIS ISSUE WAS FULLY LITIGATED AT THE
HEARING. THERE IS NO QUESTION THAT THE REMARKS MADE BY THE INTERVIEW
PANEL REGARDING EMPLOYEES UNION SYMPATHIES SUCH AS FLORES BEING A LABOR
ADVOCATE; COLE BEING AN EMPLOYEE ADVOCATE; AND FLORES BEING EXTREMELY
LABOR ORIENTED ARE VIOLATIVE OF SECTION 19(A)(1) OF THE ORDER, AND IT IS
SO FOUND. SUCH REMARKS ARE INHERENTLY DESTRUCTIVE OF SECTION 1(A)
RIGHTS AND PROOF A SPECIFIC KNOWLEDGE IS NOT NECESSARY TO SUSTAIN A
FINDING THAT SUCH CONDUCT IS VIOLATIVE OF THE ORDER. U.S. DEPARTMENT OF
HOUSING AND URBAN DEVELOPMENT, MILWAUKEE AREA OFFICE, MILWAUKEE,
WISCONSIN, A/SLMR NO. 925.
THE RECORD DEMONSTRATES THAT DR. BELL MADE HIS SELECTIONS WITHOUT
BENEFIT OF THE INTERVIEW PANEL REMARKS OR WITHOUT KNOWLEDGE THAT SUCH
REMARKS WERE CONTAINED IN THE INTERVIEW REPORT FORMS. ALTHOUGH ORDERED
TO MAKE THE PANEL REPORTS A PART OF THE SELECTION PROCESS DR. BELL
RESISTED SUCH ORDERS FROM REGIONAL DIRECTOR STUCK FROM THE OUTSET. I
CREDIT DR. BELL'S TESTIMONY THAT HE FELT THE PANEL WAS A WASTE OF TIME,
THAT HE HAD NO CONTACT WITH THE PANEL MEMBERS AND THAT IT "WAS STUCK'S
PANEL." I AM THEREFORE CONVINCED THAT, THE INTERVIEW REPORT FORMS PLAYED
NO PART IN THE SELECTION OF SUPERVISORS FOR THE FOUR POSITIONS BECAUSE
OF DR. BELL'S OBDURATE POSITION ON THE PANEL'S USEFULNESS IN THESE
SELECTIONS FROM THE OUTSET.
RECOMMENDATIONS
HAVING FOUND THAT RESPONDENT DID NOT ENGAGE IN CONDUCT PROHIBITED BY
SECTION 19(A)(2) OF THE EXECUTIVE ORDER, AS AMENDED, IT IS HEREBY
RECOMMENDED THAT SUCH PORTIONS OF THE COMPLAINT BE DISMISSED IN THEIR
ENTIRETY. FURTHER, HAVING FOUND THAT RESPONDENT HAS ENGAGED IN CONDUCT
PROHIBITED BY SECTION 19(A)(1) OF THE EXECUTIVE ORDER, AS AMENDED, THE
FOLLOWING ORDER IS RECOMMENDED.
RECOMMENDED ORDER
PURSUANT TO SECTION 2400.2 OF THE TRANSITION RULES AND REGULATION OF
THE FEDERAL LABOR RELATIONS AUTHORITY AND SECTION 7135 OF THE FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, THE AUTHORITY HEREBY ORDERS
THAT THE DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, OFFICE OF CIVIL
RIGHTS, REGION VI, DALLAS, TEXAS.
1. CEASE AND DESIST FROM:
(A) DISCOURAGING MEMBERSHIP IN A LABOR ORGANIZATION BY COMMENTING ON
EMPLOYEE INTERVIEW REPORT FORMS REGARDING AN EMPLOYEES' UNION OR LABOR
ORGANIZATION ACTIVITIES OR SYMPATHIES.
(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING OR
COERCING EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY EXECUTIVE
ORDER 11491, AS AMENDED.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION:
(A) REMOVE OR EXPUNGE FROM ITS INTERVIEW REPORT FORMS WRITTEN
MATERIALS REGARDING UNION OR LABOR ORGANIZATION ACTIVITIES OR SYMPATHIES
OF EMPLOYEES GEORGE COLE, HECTOR FLORES AND JAY ASKEW.
(B) POST AT THE HEALTH, EDUCATION AND WELFARE, OFFICE OF CIVIL
RIGHTS, REGION VI, DALLAS, TEXAS, COPIES OF THE ATTACHED NOTICE MARKED
"APPENDIX" ON FORMS TO BE FURNISHED BY THE FEDERAL LABOR RELATIONS
AUTHORITY. UPON RECEIPT OF SUCH FORMS, THEY SHALL BE SIGNED BY THE
DIRECTOR OF THE HEALTH, EDUCATION, AND WELFARE, OFFICE OF CIVIL RIGHTS,
REGION VI, DALLAS, TEXAS, AND THEY SHALL BE POSTED AND MAINTAINED BY HIM
FOR 60 CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL
PLACES WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED. THE REGIONAL
DIRECTOR SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE NOT
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
(C) NOTIFY THE FEDERAL LABOR RELATIONS AUTHORITY, IN WRITING WITHIN
30 DAYS FROM THE DATE OF THIS ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO
COMPLY HEREWITH.
IT IS FURTHER ORDERED THAT THOSE PORTIONS OF THE COMPLAINT IN GENERAL
COUNSEL CASES NOS. 6-CA-9, 6-CA-44, AND 6-CA-45 FOUND NOT TO BE
VIOLATIVE OF THE EXECUTIVE ORDER BE, AND THEY HEREBY ARE DISMISSED.
ELI NASH, JR.
ADMINISTRATIVE LAW JUDGE
DATED: FEBRUARY 15, 1980
WASHINGTON, D.C.
APPENDIX
NOTICE TO ALL EMPLOYEES PURSUANT TO DECISION AND ORDER OF
THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO
EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE
UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT DISCOURAGE MEMBERSHIP IN A LABOR ORGANIZATION BY
COMMENTING ON EMPLOYEE INTERVIEW REPORT FORMS REGARDING AN EMPLOYEES'
UNION OR LABOR ORGANIZATION ACTIVITIES OR SYMPATHIES.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
EXECUTIVE ORDER 11491, AS AMENDED.
WE WILL REMOVE OR EXPUNGE FROM THE INTERVIEW REPORT FORMS ALL WRITTEN
MATERIALS REGARDING UNION OR LABOR ORGANIZATION ACTIVITIES OF EMPLOYEES
GEORGE COLE, HECTOR FLORES, AND JAY ASKEW.
(AGENCY OR ACTIVITY)
DATED:
BY:
(SIGNATURE)
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
OF POSTING, AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL.
IF EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY; WHOSE ADDRESS IS:
DOWNTOWN POST OFFICE STATION, P.O. BOX 2640, DALLAS, TEXAS 75221, AND
WHOSE TELEPHONE NUMBER IS (214) 767-4996.
--------------- FOOTNOTES$ ---------------
/1/ THE AUTHORITY NOTES THAT WITH THE ESTABLISHMENT OF THE DEPARTMENT
OF EDUCATION, THE DEPARTMENT OF HEALTH, EDUCATION AND WELFARE WAS
REDESIGNATED AS THE DEPARTMENT OF HEALTH AND HUMAN SERVICES.
/2/ THE COMPLAINT IN CASE NO. 6-CA-51 WAS WITHDRAWN, WITH THE
APPROVAL OF THE ADMINISTRATIVE LAW JUDGE, AT THE HEARING.
/3/ THE PRESENT CASES ARE DECIDED SOLELY ON THE BASIS OF E.O. 11491,
AS AMENDED, WHICH WAS OPERATIVE AT THE TIME OF THE ALLEGED UNFAIR LABOR
PRACTICE AND IS ALONE INVOLVED IN THE INSTANT COMPLAINT. THE DECISION
AND ORDER DOES NOT PREJUDGE IN ANY MANNER EITHER THE MEANING OR
APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR THE RESULT WHICH
WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN UNDER THE
STATUTE RATHER THAN THE EXECUTIVE ORDER. IN ADDITION, IT IS NOT
NECESSARY FOR THE AUTHORITY TO CONSIDER, AND THE AUTHORITY SPECIFICALLY
DOES NOT PASS UPON, THE STANDARDS SET FORTH BY THE ADMINISTRATIVE LAW
JUDGE AT PAGE 8 OF HIS RECOMMENDED DECISION AND ORDER WITH REGARD TO
FINDING VIOLATIONS IN SITUATIONS WHEREIN UNION CONSIDERATIONS WERE SHOWN
TO HAVE PLAYED A PART IN AN ACTION BY MANAGEMENT.
/4/ AT THE REQUEST OF THE PARTIES, THE WITHDRAWAL REQUEST IN CASE NO.
6-CA-51 INVOLVING EMPLOYEE T. G. JONES IS APPROVED AND ALL ALLEGATIONS
REGARDING THE FAILURE TO PROMOTE MR. JONES ARE STRICKEN FROM THE
COMPLAINT.
/5/ ALTHOUGH THE COMPLAINT ALLEGED VIOLATIONS OF SECTION 19(A) OF
EXECUTIVE ORDER 11491, AS AMENDED, PURSUANT TO SECTIONS 7104(F) AND 7134
OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT.
1196, 1215), ALL SUCH CHANGES FILED WITH THE FEDERAL LABOR RELATIONS
AUTHORITY ON OR AFTER JANUARY 11, 1979, WILL BE PROCESSED BY THE GENERAL
COUNSEL AND THE AUTHORITY IN ACCORDANCE WITH POSTS 2423 AND 2429 OF
THEIR RULES AND REGULATIONS (44 F.R. 44740).
/6/ AT THE HEARING, THE GENERAL COUNSEL MOVED TO AMEND THE COMPLAINT
TO INCLUDE INTER ALIA AN AMENDMENT INVOLVING A NON-SELECTION OCCURRING
APPROXIMATELY 3 DAYS PRIOR TO THE HEARING, WHICH WAS DENIED. THIS
MOTION WAS RENEWED IN BRIEF. I WILL NOT NOW ACQUIESCE IN THE REVERSAL
OF MY EARLIER POSITION BECAUSE GRANTING THE MOTION WOULD SUBSTANTIALLY
ENLARGE THE QUESTION PRESENTED FOR DISPOSITION AT THE HEARING AND COULD
POTENTIALLY JUSTIFY A STRONGER REMEDY. MOREOVER, THE QUESTION OF THE
OCTOBER 1979 NON-SELECTION WAS NOT FULLY LITIGATED AT THE HEARING.
/7/ OLSEN WAS SUBSEQUENTLY PROMOTED TO A MANAGEMENT POSITION.
/8/ INDEED, THE AWARDS RECEIVED BY COLE VAULTED HIM TO THE TOP OF THE
NOVEMBER 2, 1978 MERIT PROMOTION LIST SINCE HE RECEIVED 2 POINTS FOR
THESE AWARDS WHEREIN NO OTHER EMPLOYEE RECEIVED ANY POINTS IN THAT
CATEGORY.
/9/ ALTHOUGH THE GENERAL COUNSEL CONTENDS THAT THE NUMERICAL RANKING
OF THE THREE DISCRIMINATES CLEARLY DICTATE THAT THEY BE SELECTED, I
BELIEVE, AFTER REVIEWING THE RANKINGS, THAT SUCH A CONTENTION IS
MISPLACED. FOR EXAMPLE, AS POINTED OUT SUPRA, COLE WAS RANKED FIRST BY
VIRTUE OF THE FACT THAT HE HAD RECEIVED RANKING POINTS FOR AWARDS
RECEIVED. WITHOUT THESE POINTS HE WOULD HAVE BEEN NO HIGHER THAN 6TH OR
7TH ON THE LIST. SIMILARLY, FLORES RECEIVED ONLY TWO POINTS FROM EACH
OF THE RANKING PANEL MEMBERS FOR PERFORMANCE APPRAISALS AND NO CANDIDATE
WITH THIS RANKING IN THAT CATEGORY WAS SELECTED. THUS, IT APPEARS THAT
THE RANKINGS WERE MERELY TO ESTABLISH A CUT OFF POINT FOR THE BEST
QUALIFIED LIST AND NOT TO SET AN ORDER OF SELECTION.
/10/ I AM NOT UNAWARE OF THE TESTIMONY OF RECORD THAT DR. BELL STATES
THAT HE RELIED ON THE REPORTS OF THE INTERVIEW PANEL WHEN HE MADE HIS
SELECTIONS IN THIS MATTER. IN SPITE OF THIS TESTIMONY, I FIND THAT HE
CREDIBLY TESTIFIED THAT HE WAS NOT AWARE OF THE REMARKS ON THE INTERVIEW
REPORTS UNTIL WELL AFTER THE SELECTIONS WERE MADE.