United States Air Force, Dyess Air Force Base, Texas Abilene, TX (Respondent) and American Federation of Government Employees, Local 2356, AFL-CIO (Complainant)
[ v03 p809 ]
03:0809(122)CA
The decision of the Authority follows:
3 FLRA No. 122
UNITED STATES AIR FORCE
DYESS AIR FORCE BASE, TEXAS
ABILENE, TEXAS
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2356
Complainant
Case No. 6-CA-117
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 THE UNFAIR LABOR PRACTICE ALLEGED IN THE COMPLAINT AND
RECOMMENDING IT CEASE AND DESIST THEREFROM AND TAKE CERTAIN AFFIRMATIVE
ACTIONS AS SET FORTH IN THE ATTACHED ADMINISTRATIVE LAW JUDGE'S
RECOMMENDED DECISION AND ORDER. THE RESPONDENT FILED EXCEPTIONS TO THE
ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER AND THE
GENERAL COUNSEL FILED A RESPONSE TO THE RESPONDENT'S EXCEPTIONS.
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 2400.2 OF THE AUTHORITY'S RULES AND REGULATIONS
(5 CFR 2400.2). THE AUTHORITY CONTINUES TO BE RESPONSIBLE FOR THE
PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN SECTION 7135(B) OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1215).
THEREFORE, PURSUANT TO SECTION 2400.2 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 NO PREJUDICIAL ERROR WAS COMMITTED. THE RULINGS ARE HEREBY
AFFIRMED. UPON CONSIDERATION OF THE ADMINISTRATIVE LAW JUDGE'S
RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THE SUBJECT
CASE, INCLUDING THE RESPONDENT'S EXCEPTIONS, AND THE GENERAL COUNSEL'S
RESPONSE THERETO, THE AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW
JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATION EXCEPT AS MODIFIED
HEREIN.
THE ADMINISTRATIVE LAW JUDGE FOUND THAT THE RESPONDENT VIOLATED
SECTION 19(A)(2) AND (1) OF THE EXECUTIVE ORDER 11491, AS AMENDED, BY
REFUSING TO REHIRE MRS. PATRICIA C. CARROLL BECAUSE OF HER ACTIVITY AS A
UNION STEWARD FOR THE COMPLAINANT, LOCAL 2356, AFGE. AS A REMEDY THE
ADMINISTRATIVE LAW JUDGE RECOMMENDED, AMONG OTHER THINGS, THAT THE
RESPONDENT OFFER PATRICIA C. CARROLL EMPLOYMENT AS A SALES STORE
CHECKER, GS-3 INTERMITTENT, OR IF THAT JOB NO LONGER EXISTS, IN A
SUBSTANTIALLY SIMILAR POSITION, AND MAKE HER WHOLE BY THE PAYMENT OF
THAT SUM OF MONEY WHICH SHE WOULD HAVE EARNED BETWEEN THE DATE OF
DISCRIMINATORY FAILURE TO HIRE AND THE DATE OF OFFER OF EMPLOYMENT, LESS
ANY AMOUNTS EARNED ELSEWHERE DURING THAT PERIOD OF TIME.
THE COMPTROLLER GENERAL HAS PREVIOUSLY DECIDED, IN MATTERS ARISING
UNDER EXECUTIVE ORDER 11491, AS AMENDED, THAT IN CASES OF AGENCY
DISCRIMINATION IN HIRING, THE BACK PAY ACT OF 1966, 5 U.S.C. 5596(1970)
"IS APPOSITE ONLY TO FEDERAL EMPLOYEES AND DOES NOT PROVIDE A REMEDY FOR
UNSUCCESSFUL APPLICANTS FOR FEDERAL EMPLOYMENT." SEE DECISION NO.
B-180010, 54 COMP.GEN. 760, 763 (MARCH 19, 1975). THE COMPTROLLER
GENERAL FURTHER INDICATED THAT, IN HIS OPINION, THE ASSISTANT SECRETARY
OF LABOR FOR LABOR-MANAGEMENT RELATIONS "MAY NOT DIRECT AN APPLICANT'S
APPOINTMENT (TO A CIVIL SERVICE POSITION) EVEN THOUGH HE IS AUTHORIZED
TO TAKE AFFIRMATIVE ACTION IN CASES INVOLVING DISCRIMINATION IN HIRING
AS A RESULT OF AN UNFAIR LABOR PRACTICE." IN SO CONCLUDING, HE NOTED
THAT "THE AUTHORITY TO APPOINT IS IN THE ADMINISTRATIVE AGENCIES UNDER
REGULATIONS ISSUED BY THE CIVIL SERVICE COMMISSION (NOW THE OFFICE OF
PERSONNEL MANAGEMENT)." ID. AT 763-764. SEE ALSO FEDERAL EMPLOYEES
METAL TRADES COUNCIL AND MARE ISLAND NAVAL SHIPYARD, 3 FLRA NO. 90,
WHEREIN THE AUTHORITY, BASED UPON AN INTERPRETATION BY OPM, SET ASIDE AS
VIOLATIVE OF APPLICABLE LAW, CIVIL SERVICE REGULATIONS AND INSTRUCTIONS,
AN ARBITRATOR'S AWARD REQUIRING A GRIEVANT TO BE RETROACTIVELY APPOINTED
TO A CAREER POSITION WITH BACK PAY. IN VIEW OF THE FOREGOING, THE
AUTHORITY IS CONSTRAINED TO CONCLUDE THAT THE REMEDIAL ORDER RECOMMENDED
BY THE ADMINISTRATIVE LAW JUDGE MUST BE MODIFIED AS SET FORTH BELOW.
/1A/
ORDER
PURSUANT TO SECTION 2400.2 OF THE RULES AND REGULATIONS 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 THE AIR FORCE, DYESS AIR FORCE BASE, ABILENE,
TEXAS, SHALL:
1. CEASE AND DESIST FROM:
(A) REFUSING TO EMPLOY PATRICIA CARROLL, OR ANY OTHER APPLICANT,
BECAUSE OF MEMBERSHIP IN, OR ACTIVITY IN BEHALF OF, LOCAL 2356, AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO.
(B) DISCOURAGING MEMBERSHIP IN LOCAL 2356, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, OR ANY OTHER LABOR ORGANIZATION, BY
DISCRIMINATION IN RESPECT TO ANY TERM OR CONDITION OF EMPLOYMENT, BASED
UPON CONSIDERATIONS OF UNION MEMBERSHIP.
(C) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING OR
COERCING EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED BY EXECUTIVE ORDER
11491, AS AMENDED.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSE AND POLICIES OF EXECUTIVE ORDER 11491, AS AMENDED.
(A) GIVE FIRST CONSIDERATION TO PATRICIA CARROLL, IN FILLING ANY
POSITION FOR WHICH SHE MAY BE QUALIFIED, INCLUDING BUT NOT LIMITED TO
THE POSITION OF SALES STORE CHECKER, GS-3 INTERMITTENT, WITHOUT REGARD
TO HER UNION ACTIVITY ON BEHALF OF LOCAL 2356, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, OR ANY OTHER LABOR ORGANIZATION.
(B) POST AT ITS ABILENE, TEXAS, FACILITY, 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 BASE COMMANDER AND 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 BASE COMMANDER
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.
ISSUED, WASHINGTON, D.C., JULY 31, 1980
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO
A 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 REFUSE TO EMPLOY PATRICIA CARROLL, OR ANY OTHER
APPLICANT, BECAUSE OF MEMBERSHIP IN, OR ACTIVITY ON BEHALF OF, LOCAL
2356, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO.
WE WILL NOT DISCOURAGE MEMBERSHIP IN LOCAL 2356, AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, AFL-CIO, OR ANY OTHER LABOR ORGANIZATION, BY
DISCRIMINATION IN RESPECT TO ANY TERM OR CONDITION OF EMPLOYMENT, BASED
UPON CONSIDERATIONS OF UNION MEMBERSHIP.
WE WILL NOT IN ANY LIKE OR RELATED MANNER, INTERFERE WITH, RESTRAIN
OR COERCE EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED BY EXECUTIVE ORDER
11491, AS AMENDED.
WE WILL GIVE FIRST CONSIDERATION TO PATRICIA CARROLL, IN FILLING ANY
POSITION FOR WHICH SHE MAY BE QUALIFIED, INCLUDING BUT NOT LIMITED TO
THE POSITION OF SALES STORE CHECKER, GS-3 INTERMITTENT, WITHOUT REGARD
TO HER UNION ACTIVITY ON BEHALF OF LOCAL 2356, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, OR ANY OTHER LABOR ORGANIZATION.
UNITED STATES AIR FORCE, DYESS
AIR FORCE BASE, TEXAS, ABILENE, TEXAS
DATED: BY: (BASE COMMANDER)
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 FOR THE FEDERAL LABOR RELATIONS AUTHORITY, WHOSE
ADDRESS IS: BRYAN & ERVAY STREET, OLD POST OFFICE BUILDING, ROOM 450,
DALLAS, TEXAS 75221.
CERTIFICATE OF SERVICE
COPIES OF THE DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS
AUTHORITY IN THE SUBJECT PROCEEDING HAVE THIS DAY BEEN MAILED TO THE
PARTIES LISTED BELOW:
STEVEN M. ANGEL, ESQ.
FEDERAL LABOR RELATIONS AUTHORITY
BRYAN & ERVAY STREET
OLD POST OFFICE BUILDING
ROOM 450
DALLAS, TEXAS 75221
JERRY M. BRASEL
CENTRAL LABOR LAW OFFICE
RANDOLPH AIR FORCE BASE, TEXAS 78148
MILTON COLIA
96TH CSG/JA
DYESS AIR FORCE BASE, TEXAS 79607
PETER EVANS
NATIONAL REPRESENTATIVE, 10TH DISTRICT
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
203 TIMOTHY TRAIL
DUNCANVILLE, TEXAS 75116
MR. KENNETH T. BLAYLOCK, PRESIDENT
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
1325 MASSACHUSETTS AVENUE, N.W.
WASHINGTON, D. C. 20005
MR. GABRIEL PERALES, JR.
REGIONAL DIRECTOR
FEDERAL LABOR RELATIONS AUTHORITY
DOWNTOWN POST OFFICE STATION
BRYAN AND ERVAY STREETS
P. O. BOX 2640
DALLAS, TEXAS 75202
/1A/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM
ACT OF 1978 (92 STAT. 1224), THE PRESENT CASE IS DECIDED SOLELY ON THE
BASIS OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
THE DECISION AND ORDER DOES NOT PREJUDGE IN ANY MANNER WITHER 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.
STEVEN M. ANGEL, ESQUIRE
FEDERAL LABOR RELATIONS AUTHORITY
REGION VI
BRYAN & ERVAY STREET
OLD POST OFFICE BUILDING
ROOM 450
DALLAS, TX 75221
FOR THE GENERAL COUNSEL
JERRY M. BRASEL
CENTRAL LABOR LAW OFFICE
RANDOLPH AIR FORCE BASE, TX 78148
FOR THE RESPONDENT
MILTON COLIA
96TH CSG/JA
DYESS AIR FORCE BASE, TX 79607
FOR THE RESPONDENT
PETE EVANS
NATIONAL REPRESENTATIVE, 10TH DISTRICT
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
203 TIMOTHY TRAIL
DUNCANVILLE, TX 75116
FOR THE CHARGING PARTY
BEFORE: JOHN H. FENTON
ADMINISTRATIVE LAW JUDGE
DECISION AND ORDER
STATEMENT OF THE CASE
THIS IS A PROCEEDING PURSUANT TO THE FEDERAL LABOR-MANAGEMENT
RELATIONS STATUTE, 92 STAT. 1191, 5 U.S.C. SECTION 7101 ET SEQ., WHICH
AROSE UPON A COMPLAINT FILED ON AUGUST 20, 1979 BY THE REGIONAL
DIRECTOR, REGION 6, FEDERAL LABOR RELATIONS AUTHORITY, AGAINST THE
DEPARTMENT OF THE AIR FORCE, DYESS AIR FORCE BASE, ABILENE, TEXAS. THE
COMPLAINT ALLEGED THAT RESPONDENT VIOLATED SECTION 19(A)(2) AND (1) OF
THE EXECUTIVE ORDER 11491 ON DECEMBER 13, 1978, BY REFUSING TO REHIRE
MRS. PATRICIA C. CARROLL BECAUSE OF HER ACTIVITY AS A STEWARD FOR LOCAL
2356, AFGE. RESPONDENT'S DEFENSE, IN SUBSTANCE, IS THAT CARROLL WAS NOT
HIRED BECAUSE SHE HAD INDICATED AN INTENTION TO BID OUT OF THE
COMMISSARY ON THE BASIS OF HER STATUS AS A REINSTATEMENT ELIGIBLE, AND
THUS WOULD NOT SERVE LONG IN THE COMMISSARY; BECAUSE SHE HAD APPLIED
UNDUE PRESSURE IN HER EFFORT TO BE HIRED; AND BECAUSE IT HIRED PURSUANT
TO A SPECIAL (LOCAL) RECRUITMENT PROGRAM DESIGNED TO MEET THE
REQUIREMENTS OF ITS EQUAL EMPLOYMENT OPPORTUNITY PROGRAM.
AT THE HEARING ALL PARTIES WERE AFFORDED FULL OPPORTUNITY TO BE
HEARD, TO EXAMINE AND CROSS-EXAMINE WITNESSES, AND TO INTRODUCE EVIDENCE
BEARING UPON THE ISSUES. COUNSEL FOR THE GENERAL COUNSEL AND FOR
RESPONDENT FILED BRIEFS. UPON THE ENTIRE RECORD, INCLUDING MY
OBSERVATION OF THE WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING
FINDINGS OF FACT AND CONCLUSIONS.
FACTS
1. MRS. PATRICIA C. CARROLL FIRST WORKED AS A GS-3 CHECKER AT THE
DYESS AIR FORCE BASE COMMISSARY FROM JULY OF 1974 TO MAY, 1976. SHE WAS
A VERY ACTIVE AND SUCCESSFUL UNION STEWARD FROM MARCH OF 1975 UNTIL SHE
LEFT. SHE DESCRIBED NINE GRIEVANCES SHE WON, INCLUDING ONE ADDRESSED TO
PRE-SELECTION OF THE HEAD CASHIER WHICH REDOUNDED TO THE BENEFIT OF THE
PRESENT INCUMBENT, MRS. ANNA HAMMERSMITH. SHE ALSO COMPLAINED TO THE
OFFICE OF SPECIAL INVESTIGATIONS ABOUT THEFTS WHICH SHE SAID HAD BEEN
IGNORED BY MANAGEMENT. SHE TESTIFIED THAT WHEN SHE RESIGNED, AGENTS OF
THAT OFFICE TOLD HER TO IMMEDIATELY CONTACT THEM IN THE EVENT SHE EVER
WAS REFUSED REEMPLOYMENT. WHEN SHE LEFT DYESS TO ACCOMPANY HER HUSBAND
TO ORLANDO, FLORIDA, SHE REQUESTED AND RECEIVED OUTSTANDING LETTERS OF
RECOMMENDATION FROM HAMMERSMITH AS "VERY EFFICIENT . . . DEPENDABLE AND
CONSCIENTIOUS," AN "OUTSTANDING" EMPLOYEE AND A "GREAT ASSET TO ANY
ORGANIZATION." THE OTHER TWO WERE EQUALLY EFFUSIVE IN THEIR PRAISE (G.C.
EXHIBITS 4, 15(A) AND 15(B)).
2. CARROLL WAS A CASHIER IN THE ORLANDO NAVY EXCHANGE FROM SEPTEMBER
OF 1976 TO MAY OF 1977 AND THEN MOVED TO ARIZONA, WHERE SHE WORKED AS A
GS-2 INTERMITTENT CHECKER IN THE COMMISSARY AT LUKE AIR FORCE BASE FOR
APPROXIMATELY 90 DAYS ENDING IN AUGUST, 1978. DURING THAT TIME SHE USED
SOPHISTICATED CASH REGISTERS SIMILAR TO THOSE IN USE AT DYESS. IN
MID-AUGUST SHE TELEPHONE MRS. HAMMERSMITH TO INFORM HER THAT SHE WAS
RETURNING TO ABILENE, AND TO INQUIRE ABOUT THE AVAILABILITY OF CASHIER
JOBS AND HOUSING. HAMMERSMITH TOLD HER THAT THEY ALWAYS NEED CASHIERS
AND AGREED TO CALL PERSONNEL TO DETERMINE WHETHER CARROLL SHOULD
ATTEMPT
TO TRANSFER OR SHOULD RESIGN AND REAPPLY. THEN OR IN THEIR NEXT
CONVERSATION, CARROLL WAS TOLD THAT THE AVAILABLE JOBS WERE GS-3
INTERMITTENT PART-TIME, WHICH LIMITED EMPLOYEES TO 20 HOURS PER WEEK
WHENEVER NEEDED.
3. IN EARLY SEPTEMBER CARROLL MOVED TO ABILENE AND VISITED
HAMMERSMITH AT WORK. SHE WAS TOLD THAT THE VACANCIES EXISTED BUT WERE
NOT YET BEING FILLED, AND THAT SHE SHOULD APPLY AT THE PERSONNEL
SECTION, MAKING SURE THAT SHE INDICATED HER WILLINGNESS TO ACCEPT
INTERMITTENT EMPLOYMENT. AT THAT TIME SHE WAS INTRODUCED TO MR. RAY
WHITLEY, COMMISSARY MANAGER. HE ALSO STATED THAT CASHIERS WERE ALWAYS
NEEDED. IN MID-SEPTEMBER CARROLL FILED AN APPLICATION WITH PERSONNEL.
AGAIN SHE WAS TOLD THAT THERE WERE OPENINGS BUT IT WAS NOT KNOWN WHEN
THEY WOULD BE FILLED. SHE PROVIDED DYESS OFFICIALS WITH A LETTER OF
REFERENCE FROM HER SUPERVISOR AT LUKE, WHICH NOTED THAT SHE WAS HIGHLY
TRAINED IN THE NCR 255/726 CASH REGISTER AND THAT SHE WAS NUMBER TWO IN
AN AIR FORCE COMPETITION. (G.C. EXHIBIT 15(C)).
4. ON OCTOBER 24, 1978, DEPARTMENT OF DEFENSE WAS PLACED UNDER A
PRESIDENTIAL FREEZE WHICH PERMITTED IT TO REPLACE ONLY 50% OF ATTRITION.
THIS LASTED UNTIL FEBRUARY 1979, AND INTENSIFIED "RAIDING" AMONG
COMPONENTS OF DEPARTMENT OF DEFENSE TO ACQUIRE NEEDED PERSONNEL.
BECAUSE OF THE RELATIVELY LOW GRADES AND INCOME OF COMMISSARY
INTERMITTENT CASHIERS, BASE MANAGEMENT HAD REASON NOT TO INCREASE ITS
VULNERABILITY TO SUCH TURNOVER BY HIRING REINSTATEMENT ELIGIBLES WHO
COULD ALMOST IMMEDIATELY BID OUT TO BETTER JOBS. EMPLOYEES WITHOUT
STATUS WOULD RECEIVE TEMPORARY APPOINTMENTS AND BE REQUIRED TO WORK
SEVERAL MONTHS BEFORE ACQUIRING STATUS AND THEN AN ADDITIONAL 90 DAYS
BEFORE BEING ELIGIBLE TO BID OUT. A PERHAPS MORE STABLE, IF LESS
EXPERIENCED STAFF COULD IN THIS MANNER BE ASSEMBLED. /1/
5. FROM MID-SEPTEMBER UNTIL HER INTERVIEW ON DECEMBER 13, CARROLL
REGULARLY VISITED HAMMERSMITH AT THE CASHIER'S CAGE IN THE COMMISSARY
AND INQUIRED ABOUT JOB DEVELOPMENTS. ALTHOUGH NEVER ACCUSING CARROLL OF
BEING DISCOURTEOUS OR UNFRIENDLY, THIS PERSISTENCE, ACCORDING TO
HAMMERSMITH AND ASSISTANT HEAD CASHIER GOLDIE WILEY, WAS RECEIVED AS
PRESSURE BY HAMMERSMITH, AND CONSTITUTED "HASSLING" WHICH HAMMERSMITH
CAME TO RESENT. /2/ HAMMERSMITH TESTIFIED THAT CARROLL CONSTANTLY ASKED
WHEN SHE WOULD BE HIRED, AND SAID SHE WOULD MAKE TROUBLE IF SHE WAS NOT.
CARROLL ACKNOWLEDGES HAVING TOLD HER ABOUT THE INVITATION TO REPORT ANY
REFUSAL TO REHIRE TO THE OFFICE OF SPECIAL INVESTIGATIONS, AND FURTHER,
THAT IF SHE WAS NOT "SENT FOR CONSIDERATION" FOR EMPLOYMENT (MADE
ELIGIBLE BY PERSONNEL) SHE WOULD QUESTION IT. ON SEVERAL OCCASIONS SHE
ASKED HAMMERSMITH TO CALL PERSONNEL "RIGHT THEN," WHILE SHE WAITED, AND
SHE ONCE INQUIRED ABOUT THE HOURS WORKED BY PART-TIMERS, SAYING THAT SHE
WAS "CHECKING UP" ON HER. AT ABOUT THE TIME OF HER INTERVIEW SHE
INFORMED THE LEGAL OFFICE THAT SHE COULD BE REACHED AT THE COMMISSARY,
SO CONFIDENT WAS SHE OF SUCH EMPLOYMENT. IN ONE SUCH CONVERSATION,
CARROLL ASSERTS, HAMMERSMITH SAID WHEN ASKED WHETHER CARROLL WOULD GET
THE JOB, THAT SHE DID NOT KNOW, THAT SHE HAD TO DISCUSS IT WITH WHITLEY
AND STILL HAD MORE PEOPLE TO INTERVIEW. HAMMERSMITH AND WHITLEY
TESTIFIED THAT SHE HAD A FREE HAND IN HIRING.
6. IN LATE NOVEMBER OR EARLY DECEMBER, COMMISSARY MANAGER WHITLEY
VISITED CIVILIAN PERSONNEL OFFICER IBBOTSON TO INQUIRE ABOUT PROGRESS ON
THE LIST OF ELIGIBLES FOR CASHIERS. IN THE COURSE OF THEIR CONVERSATION
IBBOTSON TOLD WHITLEY THAT CARROLL HAD BEEN A UNION STEWARD. WHEN
WHITLEY REPORTED BACK TO HAMMERSMITH AS TO WHEN THE LIST WOULD BE SENT
DOWN, ACCORDING TO HIS AND HAMMERSMITH'S TESTIMONY HE REMARKED THAT HE
DID NOT KNOW THAT CARROLL HAD BEEN A UNION STEWARD. HAMMERSMITH
TESTIFIED THAT SHE REPLIED THAT CARROLL WAS, BUT THAT SHE DID NOT THINK
THAT THAT WAS AN ISSUE, AND THAT WHITLEY AGREED IT WAS NOT.
7. HELEN BLAIR, A CLERICAL ASSIGNED TO WHITLEY'S OFFICE, AND A UNION
MEMBER, TESTIFIED THAT SHE OVERHEARD A CONVERSATION BETWEEN WHITLEY AND
HAMMERSMITH IN DECEMBER WHEN THE FORMER INQUIRED OF THE LATTER ABOUT THE
PROGRESS OF INTERVIEWS. HAMMERSMITH ALLEGEDLY RESPONDED THAT SHE DIDN'T
KNOW WHY SHE HAD TO INTERVIEW CARROLL, WHO KNEW THE NCR REGISTER, HAD
WORKED THERE AND USED TO BE THE STEWARD, TO WHICH WHITLEY ALLEGEDLY
RESPONDED "WE DON'T WANT ANYMORE OF THAT UNION IN THE COMMISSARY." /3/
THIS CONVERSATION ALLEGEDLY OCCURRED AT THE HEAD CASHIER'S CAGE, OUT OF
MRS. BLAIRS SIGHT, AND WAS ENDED BY A PHONE CALL. ROZELL COLLINS, ALSO
A CLERICAL ASSIGNED TO WHITLEY, AND A UNION STEWARD, /4/ TESTIFIED THAT
IN DECEMBER SHE OVERHEARD A CONVERSATION INVOLVING WHITLEY, HAMMERSMITH
AND ASSISTANT HEAD CASHIER WILEY. ALLEGEDLY, WHITLEY ASKED HAMMERSMITH
WHAT KIND OF PERSON CARROLL WAS, TO WHICH HAMMERSMITH REPLIED "WELL,
SHE'S A UNION STEWARD AND SHE JUST KEEPS A LOT OF HELL GOING." WHITLEY
ALLEGEDLY RESPONDED "WELL, WE DON'T WANT ANYMORE OF THAT UNION SHIT HERE
. . . AND FURTHERMORE I'M NOT GOING TO HAVE ANYMORE OF THAT UNION SHIT
IN HERE." /5/ WILEY, WHITLEY AND HAMMERSMITH DENIED THAT ANY SUCH
CONVERSATION TOOK PLACE, ALTHOUGH THE LATTER TWO DID ADMIT TO A
DISCUSSION OF CARROLL'S FORMER ROLE AS STEWARD, AS RELATED ABOVE.
8. ON DECEMBER 6, PERSONNEL FORWARDED TO THE COMMISSARY A LIST OF 12
APPLICANTS ELIGIBLE FOR CONSIDERATION, TO BE INTERVIEWED BY HAMMERSMITH
FOR THE NINE VACANCIES. CARROLL WAS INTERVIEWED ON DECEMBER 13. ON
THAT OR SOME EARLIER OCCASION, CARROLL HAD INDICATED THAT ONCE HIRED,
SHE WOULD BE ELIGIBLE TO BID OUT WITHOUT DELAY. THE APPLICATIONS HAD
BEEN SCREENED BY GOLDIE WILEY, WHO TOLD HAMMERSMITH THAT CARROLL HAD
EXTENSIVE CASHIERING EXPERIENCE AND PROBABLY WOULD MAKE A GOOD CASHIER.
NINE EMPLOYEES WERE SELECTED, ALL FROM THE SO-CALLED LOCAL LABOR MARKET
(SOMETIMES CALLED THE TEXAS EMPLOYMENT COMMISSION (TEC) SOURCE), WHICH
IS TO SAY THEY ENJOYED NO CIVIL SERVICE STATUS. NEITHER CARROLL NOR
WILEY AND BRIER, THE OTHER TWO REINSTATEMENT ELIGIBLES ON THE LIST FOR
CONSIDERATION WAS HIRED. AS NOTED, RESPONDENT IN PART DEFENDS ON THE
GROUND THAT SUCH REINSTATEMENT ELIGIBLES WERE UNLIKELY TO LAST AS LONG
AS TEMPORARY EMPLOYEES, AND THAT WILEY AND BRIER WERE NOT UNION
ACTIVISTS. HOWEVER, HAMMERSMITH STATED ON THE PERSONNEL FORM THAT WILEY
DID NOT HAVE ENOUGH EXPERIENCE ON THE CASH REGISTER, AND SAID SIMPLY,
WITH RESPECT TO CARROLL AND BRIER, THAT SHE HAD SELECTED OTHER
CANDIDATES.
CARROLL TESTIFIED THAT SHE ASKED HAMMERSMITH WHY SHE HAD NOT BEEN
HIRED AND WAS TOLD THAT SHE HAD "HASSLED" HAMMERSMITH, WHO TOOK THIS AND
OTHER THINGS INTO CONSIDERATION, AND THAT HAMMERSMITH DID NOT HAVE TO
GIVE HER A REASON. HAMMERSMITH TESTIFIED THAT SHE TOLD CARROLL SHE
DECIDED NOT TO HIRE HER BECAUSE CARROLL WAS HARRASSING HER. ON
EXAMINATION BY COUNSEL FOR THE GENERAL COUNSEL SHE GAVE AS HER REASONS
THE FACT THAT CARROLL HAD TOLD HER SHE HAD BEEN TOLD SHE DID NOT HAVE TO
WAIT 90 DAYS BEFORE APPLYING FOR ANOTHER JOB (TAKEN BY HAMMERSMITH AS A
STATEMENT THAT SHE WOULD NOT STAY), AND THAT SHE FELT THAT CARROLL WAS
PUTTING PRESSURE ON HER AND THREATENING TO MAKE TROUBLE IF SHE WAS NOT
HIRED. HAMMERSMITH ADMITTED THAT CARROLL HAD THE MOST EXPERIENCE AMONG
THE APPLICANTS IN OPERATING A CASH REGISTER, THAT SHE KNEW REINSTATEMENT
ELIGIBLE APPLICANT BRIER ALREADY HAD ANOTHER JOB AND WAS LOOKING FOR
FULL-TIME EMPLOYMENT AND THAT REINSTATEMENT ELIGIBLE APPLICANT WILEY,
LACKED EXPERIENCE. THEIR STATUS AS REINSTATEMENT ELIGIBLES WAS
ACCORDING TO HAMMERSMITH, IMPORTANT ONLY IF THERE WAS REASON TO BELIEVE
THAT THEY WOULD SEEK TO BID OUT AT AN EARLY DATE. SHE ADMITTED ALSO
THAT SELECTED APPLICANT FRAZIER WAS AS LIKELY AS A REINSTATEMENT
ELIGIBLE TO BID OUT. SHE ALSO CONCEDED THAT THE EEO PROGRAM HAD NO
"REAL" IMPACT ON THE DECISION WHETHER TO HIRE CARROLL. /6/
9. ALTHOUGH EVIDENCE WAS ADDUCED THAT CARROLL WAS NOT THEREAFTER
CONSIDERED FOR ANY SIMILAR VACANCY BECAUSE SUCH JOBS WERE FILLED AT THE
GS-2 LEVEL, BELOW HER MINIMUM ACCEPTABLE LEVEL, A CERTIFICATE OF
ELIGIBLES WAS IN FACT ISSUED FOR GS-3 CHECKERS ON JANUARY 26, 1979 AND
ONE PERSON WAS SELECTED FROM IT (G.C. EXHIBIT 17). CONSISTENT WITH HIS
POSITION THAT NONE OF THE THREE REINSTATEMENT ELIGIBLES HAD ANY RIGHT TO
BE CONSIDERED FOR THE VACANCIES FILLED IN DECEMBER, CIVILIAN PERSONNEL
DIRECTOR IBBOTSON DID NOT REFER THEM FOR CONSIDERATION BY THE HIRING
OFFICIALS IN THE COMMISSARY.
10. CARROLL FILED A COMPLAINT OF "UNFAIR EMPLOYMENT PRACTICES" WITH
THE INSPECTOR GENERAL ON AN UNKNOWN DATE SUFFICIENTLY EARLY TO PROVOKE
AN INVESTIGATION DURING THE PERIOD FROM JANUARY 15 TO 18, 1979. THAT
INVESTIGATION WAS REOPENED, IN PART, UPON CARROLL'S REQUEST THAT
INSPECTOR GENERAL SHOULD INTERVIEW OTHER WITNESSES AND CONSIDER THE
IMPACT OF HER ACTIVITY AS A UNION STEWARD UPON HER NONSELECTION, AND
FURTHER INVESTIGATION TOOK PLACE FROM MARCH 1 THROUGH 8. THEREAFTER A
REPORT OF INVESTIGATION ISSUED, A PART OF WHICH WAS FURNISHED TO CARROLL
PURSUANT TO AN FOIA REQUEST, WHICH IS IN EVIDENCE AS G.C. EXHIBIT 16.
IT RECORDS THAT BASE MANAGEMENT DEFENDED ITS NONSELECTION OF CARROLL
EXCLUSIVELY ON THE GROUND THAT SELECTION OF THE SUCCESSFUL APPLICANTS
WAS BASED UPON THE REQUIREMENTS OF THE BASE EEO PLAN AND ITS SPECIAL
RECRUITMENT PROGRAM. NO MENTION WAS MADE IN THAT REPORT, OR THE FIRST
REPORT, OF THE RETAINABILITY DEFENSE UPON WHICH RESPONDENT RELIED SO
HEAVILY IN THIS PROCEEDING. THE RELEVANT "SPECIAL RECRUITMENT" FPM
PROVISION REQUIRES THAT AGENCIES, IN DECIDING WHICH SOURCE OR SOURCES OF
CANDIDATES TO USE, MUST DETERMINE "WHICH IS MOST LIKELY TO BEST MEET THE
AGENCY MISSION OBJECTIVES, CONTRIBUTE FRESH IDEAS AND NEW VIEWPOINTS AND
MEET THE AGENCY'S AFFIRMATIVE ACTION GOALS."
11. CIVILIAN PERSONNEL DIRECTOR DAVID IBBOTSON TESTIFIED THAT HIS
STATEMENT TO THE INSPECTOR GENERAL WAS A FAIR STATEMENT OF THE REASONS
FOR NONSELECTION OF CARROLL. THAT STATEMENT SIMPLY PARROTED THE QUOTED
FPM PROVISION. HOWEVER, HE OTHERWISE PLACED GREAT, OR AT LEAST
PARTICULAR EMPHASIS, ON THE FACT THAT THE THREE REINSTATEMENT ELIGIBLES
WERE NOT HIRED IN ORDER TO KEEP CASHIERS AVAILABLE, AS THEY WERE ASSUMED
TO WISH ENTRY INTO THE COMMISSARY AS A SPRINGBOARD TO BETTER POSITIONS
ELSEWHERE. NEVERTHELESS, THERE IS NO INDICATION THAT SUCH
CONSIDERATIONS WERE COMMUNICATED TO THE SELECTING OFFICIAL, NOR THAT
THEY ENTERED SIGNIFICANTLY INTO THE SELECTION PROCESS. THUS BRIER AND
WILEY WERE REJECTED FOR OTHER REASONS, AND CARROLL WAS ALLEGEDLY
REJECTED BECAUSE SHE HAD "HASSLED" OR "HARASSED" HAMMERSMITH AND ALSO
BECAUSE SHE HAD INDICATED A DISPOSITION TO BID OUT EARLY.
ANALYSIS AND CONCLUSIONS
THE GENERAL COUNSEL ASSERTS THAT THE NONSELECTION OF CARROLL WAS
BASED UPON ANIMUS FLOWING FROM HER EARLIER ACTIVITY AS A UNION STEWARD,
AND THAT THE CIRCUMSTANTIAL EVIDENCE SUPPORTING THIS VIEW IS
OVERWHELMING. HE LAYS PARTICULAR STRESS UPON THE SHIFTING AND
"PRETEXTUAL" NATURE OF THE VARIOUS BASES OFFERED BY MANAGEMENT IN
EXPLANATION OF ITS ACTION. MANAGEMENT ASSERTS IT HAD A LEGITIMATE
REASON FOR AVOIDING THE REINSTATEMENT ELIGIBLES-- TWO OF WHOM WERE NOT
UNION MEMBERS-- IN THEIR LIKELY PROCLIVITY TO USE CASHIER JOBS AS
STEPPING STONES. DIRECT HIRES, ON THE OTHER HAND, WOULD BE LIKELY TO
STAY, EVEN IF INVOLUNTARILY. TO THIS IT ADDS THE FACT THAT CARROLL
TRIED TO PRESSURE HAMMERSMITH TO HIRE HER, THAT SHE USED HER STEWARDSHIP
"AS A HAMMER TO GET THE JOB." FINALLY (THOUGH NOT NECESSARILY AS A
MATTER OF PRIORITY), IT ASSERTS THAT THE LOCAL RECRUITMENT PROGRAM, WITH
ITS EEO COMPONENT, EXPLAINS THE FAILURE TO REHIRE CARROLL. IT IS, OF
COURSE, RELIANCE ON THESE MULTIPLE GROUNDS WHICH THE GENERAL COUNSEL
SEEKS TO EXPLOIT.
THERE IS A STRANGE IRRELEVANCY TO THE DEFENSE BASED ON THE LOCAL
RECRUITMENT PROGRAM. ALL THOSE ELIGIBLE FOR CONSIDERATION WERE IN FACT
LOCAL, ALL WERE FEMALE, MINORITY HIRES LEFT AMPLE VACANCIES, AND THE
ASSERTED TEC SOURCE EVAPORATED. MOST IMPORTANTLY, HAMMERSMITH, THE
SELECTING OFFICIAL ACCORDING TO MANAGEMENT, TESTIFIED THAT THE EEO
PROGRAM DID NOT BEAR UPON CARROLL'S NONSELECTION. LIKEWISE, SHE
TESTIFIED THAT CARROLL'S STATUS AS A REINSTATEMENT ELIGIBLE WAS RELEVANT
"ONLY IN A WAY," AN APPARENT REFERENCE TO THE FACT THAT IT WAS NOT SUCH
STATUS, BUT RATHER INDICATION OF AN INTENTION TO USE SUCH STATUS TO BID
OUT, THAT MATTERED. WHILE THE LOCAL RECRUITMENT PROGRAM WOULD HAVE
JUSTIFIED A REFUSAL TO CONSIDER REINSTATEMENT ELIGIBLES AS A SOURCE (AS
HAPPENED LATER) THEY WERE IN FACT REFERRED FOR CONSIDERATION. THUS
PERSONNEL DID NOT PRECLUDE THEIR REHIRE, AND SUCH STATUS DID NOT ALONE
IMPACT UPON THE DECISION NOT TO REEMPLOY CARROLL.
CARROLL WAS THE MOST EXPERIENCED APPLICANT, AND HER WORK AT DYESS AND
ELSEWHERE AS A CASHIER WAS HIGHLY REGARDED. IT IS EVIDENT THAT
HAMMERSMITH WELCOMED HER REAPPEARANCE AND SOUGHT TO FACILITATE HER
REEMPLOYMENT. EITHER CARROLL WORE OUT HER WELCOME WITH HER PERSISTENT,
SOMEWHAT PRESUMPTUOUS PURSUIT OF THE JOB, OR BY DISCLOSING AN INTENTION
TO BID OUT QUICKLY, OR SHE WAS NOT HIRED ON THE INSTRUCTIONS OF WHITLEY
BECAUSE OF HER ACTIVITIES AS A STEWARD. PERHAPS ALL SUCH REASONS
ENTERED INTO THE DECISION. INTERESTINGLY, THE BELIEF THAT SHE WOULD BID
OUT AS PROMPTLY AS POSSIBLE WAS NOT GIVEN TO HER AS A REASON, NOR DID IT
PROVOKE ANY DISCUSSION OF HER PLANS. ACCORDING TO BOTH HAMMERSMITH AND
CARROLL, "HASSLING" OR "HARASSMENT" WAS THE ONLY SPECIFIC REASON
ASSIGNED.
THE DEMEANOR OF THE PRINCIPAL WITNESSES HAS NOT AIDED ME.
HAMMERSMITH, WILEY, CARROLL, BLAIR AND COLLINS GAVE THE IMPRESSION OF
BEING STRAIGHTFORWARD. MY CONCLUSIONS THUS ARE PRINCIPALLY BASED ON THE
LOGIC OF THE SITUATION, AND IN PART UPON BOTH THE SHIFTING AND
CONTRADICTORY DEFENSES ADVANCED BY THE SEVERAL LAYERS OF MANAGEMENT AND
THE RELIANCE I PLACE UPON THE TESTIMONY OF HELEN BLAIR AND ROZELLE
COLLINS, WHO TOOK THE RISK OF TESTIFYING AGAINST THEIR IMMEDIATE
SUPERIOR IN CIRCUMSTANCES WHERE THERE WAS NO APPARENT REASON FOR THEM TO
MISSTATE THE FACTS. ASIDE FROM THE STATEMENT THEY ATTRIBUTE TO WHITLEY,
THERE IS, IN FACT, NO EVIDENCE OF ANIMUS TOWARD THE UNION. COLLINS
RECEIVED A RAISE WHILE STEWARD, CARROLL RECEIVED EXCELLENT REFERENCES
AFTER HER PERIOD OF ACTIVITY AS STEWARD, AND HAMMERSMITH IN THE
BEGINNING WAS CERTAINLY HELPFUL TO CARROLL IN HER EFFORT TO SECURE
EMPLOYMENT. I DO NOT DOUBT THAT CARROLL CAME TO ANNOY HAMMERSMITH, AND
TO CONVEY THE IMPRESSION THAT SHE MUST BE HIRED, AND THAT HAMMERSMITH
FELT AND RESENTED THE PRESSURE. CARROLL DID NOT DENY HAVING SAID THAT
SHE WOULD BE ENTITLED TO BID OUT IMMEDIATELY UPON BEING HIRED. IT IS
SUSPICIOUS HOWEVER, THAT NEITHER OF THESE REASONS WAS USED ON THE FORM
RECORDING THE REASON FOR NONSELECTION, THAT THE LATTER WAS NEVER
COMMUNICATED TO CARROLL, AND THAT THE MAJOR THRUST OF THE DEFENSE
PRESENTED IN THE INSPECTOR GENERAL INVESTIGATION WAS THE LOCAL
RECRUITMENT PROGRAM AND ITS EEO COMPONENT.
RESPONDENT CONCEDES THAT WHITLEY AND HAMMERSMITH HAD A CONVERSATION
ABOUT CARROLL'S STATUS AS A FORMER STEWARD, AFTER WHITLEY WAS INFORMED
BY IBBOTSON THAT SHE HAD BEEN THE STEWARD. WHILE HE CLAIMS THAT SUCH
KNOWLEDGE CAUSED HIM NO "PARTICULAR" CONCERN, I REJECT HIS CLAIM THAT HE
LEFT THE HIRING DECISION TOTALLY TO HAMMERSMITH. RATHER I CREDIT THE
TESTIMONY OF BLAIR AND COLLINS THAT HE TOLD HAMMERSMITH THAT THE
COMMISSARY DID NOT NEED ANY MORE UNION ACTIVISM, AND I CONCLUDE THAT
HAMMERSMITH DECIDED NOT TO HIRE CARROLL FOR THAT REASON. NO OTHER
PERSUASIVE REASON IS ADVANCED FOR THE NONSELECTION OF A HIGHLY QUALIFIED
APPLICANT, ONE OF THE FEW WITH RELEVANT EXPERIENCE, AND ONE WHOSE
PREVIOUS WORK HAD BEEN REGARDED AS OUTSTANDING. ACCORDINGLY, I FIND
THAT A VIOLATION OF SECTIONS 19(A)(2) AND (1) OF THE ORDER HAS BEEN
ESTABLISHED.
RECOMMENDATION
ON THE BASIS OF THE FOREGOING FINDINGS AND CONCLUSIONS, IT IS
RECOMMENDED THAT THE AUTHORITY ISSUE THE FOLLOWING ORDER PURSUANT TO 5
C.F.R.2423.29(C):
ORDER
PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491, AS AMENDED, AND
SECTION 203.26(B) OF THE REGULATIONS THEREUNDER, AND SECTION 2400.2 OF
THE FINAL RULES AND REGULATIONS, IT IS HEREBY ORDERED THAT THE
DEPARTMENT OF THE AIR FORCE DYESS AIR FORCE BASE, ABILENE, TEXAS SHALL:
1. CEASE AND DESIST FROM:
(A) REFUSING TO EMPLOY PATRICIA CARROLL, OR ANY OTHER APPLICANT,
BECAUSE OF MEMBERSHIP IN, OR ACTIVITY IN BEHALF OF, LOCAL 2356, AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO.
(B) DISCOURAGING MEMBERSHIP IN LOCAL 2356, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, OR ANY OTHER LABOR ORGANIZATION, BY DISCRIMINATION
IN RESPECT TO ANY TERM OR CONDITION OF EMPLOYMENT, BASED UPON
CONSIDERATIONS OF UNION MEMBERSHIP.
(C) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING OR
COERCING EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED BY EXECUTIVE ORDER
11491.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF EXECUTIVE ORDER 11491, AS AMENDED.
(A) OFFER EMPLOYMENT AS A SALES STORE CHECKER, GS-3 INTERMITTENT, TO
PATRICIA CARROLL, OR IF THAT JOB NO LONGER EXISTS, IN A SUBSTANTIALLY
SIMILAR POSITION, WITHOUT PREJUDICE TO THE SENIORITY OR OTHER PRIVILEGES
SHE WOULD HAVE ENJOYED BUT FOR THE DISCRIMINATION, AND MAKE HER WHOLE BY
THE PAYMENT OF THAT SUM OF MONEY WHICH SHE WOULD HAVE EARNED BETWEEN THE
DATE OF DISCRIMINATORY FAILURE TO HIRE AND THE DATE OF OFFER OF
EMPLOYMENT, LESS ANY AMOUNTS EARNED ELSEWHERE DURING THAT PERIOD OF
TIME.
(B) POST AT ITS ABILENE, TEXAS, FACILITY, 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 BASE COMMANDER AND 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 BASE COMMANDER
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.
JOHN H. FENTON
ADMINISTRATIVE LAW JUDGE
DATED: MARCH 21, 1980
WASHINGTON, D.C.
/1/ THIS EFFORT TO ANALYZE AN IMPORTANT ELEMENT OF THE DEFENSE IS
COMPLICATED BY THE FACT THAT SIX OF THE EIGHT CASHIER'S HIRED FOR WHOM
PERSONNEL RECORDS WERE AVAILABLE WERE WIVES OF SERVICEMEN, AND THEREFORE
SUBJECT TO RELOCATION WITH THEIR HUSBANDS. HAMMERSMITH TESTIFIED THAT
THERE IS MUCH TURNOVER AMONG MILITARY DEPENDENTS.
/2/ THUS, WILEY TOLD HAMMERSMITH SHE FELT THAT CARROLL WAS PUTTING
PRESSURE ON HER, AND HAMMERSMITH RESPONDED THAT SHE DID FEEL SHE WAS
BEING PRESSURED. NEVERTHELESS WILEY DESCRIBED THE VISITS AS FRIENDLY.
THEY WERE ANNOYING SHE SAID, BECAUSE THE QUESTIONS REPEATEDLY PUT COULD
ONLY BE ANSWERED BY PERSONNEL.
/3/ I CONSIDER IT INSIGNIFICANT THAT THE WORD "UNION" WAS OMITTED
FROM BLAIR'S STATEMENT GIVEN THE INSPECTOR GENERAL, AS IT IS CLEAR FROM
THE CONTEXT THAT THE REFERENCE WAS TO THE UNION.
/4/ SHE RECEIVED A PROMOTION WHILE SERVING IN THAT CAPACITY.
/5/ MS. COLLINS GAVE A STATEMENT TO THE INSPECTOR GENERAL IN WHICH
SHE DID NOT MENTION THE UNION IN THE WORDS ATTRIBUTED TO WHITLEY, AND
SUBSTITUTED "MESS" FOR THE EXPLETIVE.
/6/ FAILURE TO RELY ON THIS DEFENSE IS UNSURPRISING, AS ALL
APPLICANTS WERE FEMALE AND THE HIRING OF FOUR MINORITY MEMBERS, WHILE
DIMINISHING OPPORTUNITIES FOR WHITES, HARDLY ELIMINATED CARROLL'S
PROSPECTS FOR SELECTION TO ONE OF THE FIVE REMAINING VACANCIES.