[ v02 p938 ]
02:0938(118)CA
The decision of the Authority follows:
2 FLRA No. 118
DIRECTORATE OF SUPPLY OPERATIONS,
DEFENSE LOGISTICS AGENCY,
HEADQUARTERS, DEFENSE LOGISTICS AGENCY
Respondent
and
LOUIS J. DERDEVANIS
Complainant
Assistant Secretary
Case No. 22-08768(CA)
DECISION AND ORDER
ON AUGUST 3, 1979, ADMINISTRATIVE LAW JUDGE ELI NASH, JR., ISSUED HIS
RECOMMENDED DECISION AND ORDER IN THE ABOVE-ENTITLED PROCEEDING, FINDING
THAT THE RESPONDENT HAD ENGAGED IN CERTAIN UNFAIR LABOR PRACTICES
ALLEGED IN THE COMPLAINT, RECOMMENDING THAT IT CEASE AND DESIST
THEREFROM, AND RECOMMENDING THAT CERTAIN OTHER ALLEGED UNFAIR LABOR
PRACTICES BE DISMISSED. THE RESPONDENT DID NOT FILE EXCEPTIONS TO THE
ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER. /1/
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
(45 F.R. 3482, JANUARY 17, 1980). THE AUTHORITY CONTINUES TO BE
RESPONSIBLE FOR THE PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN
SECTION 7135(B) OF THE FEDERAL 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 THAT 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, THE AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S
FINDINGS, CONCLUSION AND RECOMMENDATIONS AS MODIFIED BELOW.
REGARDING THE COMPLAINANT'S NON-SELECTION TO THE POSITION ADVERTISED
IN JOB OPPORTUNITY ANNOUNCEMENT (JOA) 161, THE ADMINISTRATIVE LAW JUDGE
FOUND IT WAS OBVIOUS FROM THE RECORD THAT THE COMPLAINANT'S SUPERVISOR
AT LEAST SUBJECTIVELY CONSIDERED THE COMPLAINANT'S UNION BACKGROUND WHEN
EVALUATING THE WHOLE INDIVIDUAL FOR THE JOB. HE FURTHER FOUND THE
POSSIBILITY EXISTS THAT THE COMPLAINANT MIGHT HAVE BEEN SELECTED HAD HE
BEEN RATED FOR THE JOB ABSENT CONSIDERATION OF HIS UNION ACTIVITIES.
HOWEVER, THE ADMINISTRATIVE LAW JUDGE CONCLUDED THAT NO DISCRIMINATION
BASED ON UNION CONSIDERATIONS HAD BEEN ESTABLISHED AS HE WAS "UNABLE TO
FIND THAT COMPLAINANT WOULD HAVE BEEN SELECTED BUT FOR HIS ACTIVITIES ON
BEHALF OF THE UNION . . . "
CONTRARY TO THE ADMINISTRATIVE LAW JUDGE, THE AUTHORITY FINDS THAT
THE RESPONDENT VIOLATED SECTION 19(A)(2), BECAUSE DISCRIMINATION BASED
ON UNION CONSIDERATIONS PLAYED A PART IN ITS FAILURE TO SELECT THE
COMPLAINANT FOR THE JOA 161 POSITION.
SECTION 1(A) OF THE ORDER GUARANTEES TO EACH EMPLOYEE OF THE
EXECUTIVE BRANCH OF THE FEDERAL GOVERNMENT THE RIGHT, FREELY AND WITHOUT
FEAR OF PENALTY OR REPRISAL, TO FORM, JOIN, AND ASSIST A LABOR
ORGANIZATION OR TO REFRAIN FROM SUCH ACTIVITY. AGENCY MANAGEMENT'S
ENCOURAGEMENT OR DISCOURAGEMENT OF THESE RIGHTS BY DISCRIMINATION IN
REGARD TO HIRING, TENURE, PROMOTION, OR OTHER CONDITIONS OF EMPLOYMENT
IS VIOLATIVE OF SECTION 19(A)(2) AND (1) OF THE ORDER. SPECIFICALLY, TO
FIND A SECTION 19(A)(2) VIOLATION, A COMPLAINANT MUST ESTABLISH THAT
MANAGEMENT HAD DISCRIMINATED IN REGARD TO TERMS AND CONDITIONS OF
EMPLOYEMENT BASED ON UNION CONSIDERATIONS. /2/ FURTHER, SUCH A
VIOLATION WILL BE FOUND WHERE UNION CONSIDERATIONS ARE SHOWN TO HAVE
PLAYED ONLY A PART IN MANAGEMENT'S ACTION. /3/ THUS, IF MANAGEMENT'S
RATING OF THE COMPLAINANT OR ITS FAILURE TO SELECT HIM FOR PROMOTION WAS
BASED IN WHOLE OR IN PART ON HIS UNION ACTIVITY, A VIOLATION OF SECTION
19(A)(2) WOULD BE ESTABLISHED. THEREFORE, IN ORDER TO FIND A VIOLATION
OF SECTION 19(A)(2) OF THE ORDER, IT IS NOT NECESSARY TO ESTABLISH, IN
THE CIRCUMSTANCES OF THE CASE, BUT FOR MANAGEMENT'S CONSIDERATION OF HIS
UNION ACTIVITY IT WOULD HAVE SELECTED THE COMPLAINANT. RATHER, THE
COMPLAINANT MUST DEMONSTRATE ONLY THAT HE WAS DISCRIMINATED AGAINST
BASED ON HIS UNION ACTIVITY.
THE ADMINISTRATIVE LAW JUDGE FOUND THAT HOLMES HAD CONSIDERED THE
COMPLAINANT'S UNION BACKGROUND WHEN EVALUATING HIM FOR THE JOB, AND THAT
THE COMPLAINANT MIGHT HAVE BEEN SELECTED IF THE RATINGS ON HIS
PERFORMANCE APPRAISAL HAD BEEN MADE ABSENT CONSIDERATION OF HIS UNION
ACTIVITIES. AS THESE FINDINGS BY THE ADMINISTRATIVE LAW JUDGE ARE
SUPPORTED BY THE RECORD, THE AUTHORITY ADOPTS THEM AND CONCLUDES,
THEREFORE, THAT THE RESPONDENT VIOLATED SECTION 19(A)(2) BECAUSE
DISCRIMINATION BASED ON UNION CONSIDERATIONS PLAYED A PART IN ITS
FAILURE TO SELECT THE COMPLAINANT FOR THE JOA 161 POSITION.
THE REMEDY
ALTHOUGH THE RESPONDENT HAS VIOLATED SECTION 19(A)(2) OF THE ORDER,
THERE IS NOT A SUFFICIENT BASIS TO ORDER THE DISCRIMINATEE BE
RETROACTIVELY PROMOTED AND AWARDED BACKPAY AS THE RECORD DOES NOT
ESTABLISH THAT "BUT FOR" CONSIDERATION OF THE COMPLAINANT'S UNION
ACTIVITY IN THE RATING AND SELECTION PROCESS, THE COMPLAINANT WOULD HAVE
BEEN SELECTED. /4/
HOWEVER, THE AUTHORITY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S
CONCLUSION THAT THE VIOLATION CAN PROPERLY BE REMEDIED ONLY BY REQUIRING
THAT THE COMPLAINANT BE RERATED AND THAT THE SELECTION PROCESS BE RERUN
BY ANOTHER SELECTING OFFICIAL.
ORDER /5/
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 DIRECTORATE OF SUPPLY OPERATIONS, DEFENSE LOGISTICS AGENCY,
HEADQUARTERS, DEFENSE LOGISTICS AGENCY, SHALL:
1. CEASE AND DESIST FROM:
(A) INTERFERING WITH, RESTRAINING, OR COERCING LOUIS J. DERDEVANIS IN
THE EXERCISE OF HIS RIGHTS ASSURED BY EXECUTIVE ORDER 11491, AS AMENDED,
BY THREATENING TO DOWNGRADE HIS ANNUAL PERFORMANCE APPRAISAL FOR
ASSISTING THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2449.
(B) DISCOURAGING LOUIS J. DERDEVANIS FROM MEMBERSHIP IN THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2449, BY DISCRIMINATING
AGAINST HIM IN REGARD TO EVALUATING HIS WORK PERFORMANCE AND HIS FITNESS
FOR PROMOTION BASED ON UNION CONSIDERATIONS.
(C) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING LOUIS J. DERDEVANIS OR ANY OTHER EMPLOYEE IN THE EXERCISE OF
RIGHTS ASSURED BY EXECUTIVE ORDER 11491, AS AMENDED.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
POLICIES AND PROVISIONS OF THE ORDER.
(A) RE-EVALUATE LOUIS J. DERDEVANIS' WORK PERFORMANCE FOR THE PERIODS
COVERED BY THE JUNE 1977 EVALUATION FOR JOB OPPORTUNITY ANNOUNCEMENT 161
AND BY THE SEPTEMBER 1977 ANNUAL PERFORMANCE APPRAISAL, AND ENSURE THE
RE-EVALUATIONS ARE MADE FREE FROM ANY REFERENCE TO UNION MEMBERSHIP OR
ACTIVITY.
(B) TAKE ALL STEPS NECESSARY TO ENSURE THAT THE NEW OFFICIAL
RE-EVALUATING LOUIS J. DERDEVANIS' WORK PERFORMANCE PURSUANT TO
PARAGRAPH 2(A) OF THIS ORDER IS MADE AWARE OF THE REQUIREMENT THAT
CONSIDERATIONS OF UNION MEMBERSHIP OR ACTIVITY MAY NOT PROPERLY ENTER
INTO AN EVALUATION OF AN EMPLOYEE'S WORK PERFORMANCE.
(C) RERUN THE SELECTION PROCESS FOR FILLING THE POSITION THAT WAS
ADVERTISED BY JOB OPPORTUNITY ANNOUNCEMENT 161, FOR THE PURPOSE OF
REAPPRAISING THE FIVE CANDIDATES ON THE ORIGINAL BEST QUALIFIED LIST,
INCLUDING LOUIS J. DERDEVANIS, IN AN ATMOSPHERE FREE OF ANY REFERENCE
TO, OR CONSIDERATION OF, UNION MEMBERSHIP OR ACTIVITY. THE REAPPRAISAL
WILL CONSIDER THE RE-EVALUATION OF LOUIS J. DERDEVANIS' WORK PERFORMANCE
FOR THE PERIOD COVERED BY THE JUNE 1977 EVALUATION FOR JOB OPPORTUNITY
ANNOUNCEMENT 161 MANDATED BY PARAGRAPH 2(A) OF THIS ORDER.
(D) TAKE ALL STEPS NECESSARY TO ENSURE THAT THE NEW SELECTING
OFFICIAL RERUNNING THE SELECTION PROCESS PURSUANT TO PARAGRAPH 2(C) OF
THIS ORDER IS MADE AWARE OF THE REQUIREMENT THAT CONSIDERATIONS OF UNION
MEMBERSHIP OR ACTIVITY MAY NOT PROPERLY ENTER INTO AN APPRAISAL OF AN
EMPLOYEE'S FITNESS FOR PROMOTION.
(E) POST AT ITS FACILITY AT THE DIRECTORATE OF SUPPLY OPERATIONS,
DEFENSE LOGISTICS AGENCY, HEADQUARTERS, CAMERON STATION, VIRGINIA,
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 DEFENSE LOGISTICS AGENCY AND
SHALL BE POSTED AND MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS THEREAFTER
IN CONSPICUOUS PLACES, INCLUDING ALL BULLETIN BOARDS AND OTHER PLACES
WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED. THE DIRECTOR SHALL
TAKE REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED,
DEFACED, OR COVERED BY ANY OTHER MATERIAL.
(F) 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 THE COMPLAINT, INSOFAR AS IT ALLEGES
VIOLATIONS OF SECTION 19(A)(2) WITH RESPECT TO NON-SELECTIONS PRIOR TO
JOB OPPORTUNITY ANNOUNCEMENT 161, BE, AND IT HEREBY IS, DISMISSED.
ISSUED, WASHINGTON, D.C., MARCH 21, 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 INTERFERE WITH, RESTRAIN, OR COERCE EMPLOYEE LOUIS J.
DERDEVANIS IN THE EXERCISE OF HIS RIGHTS ASSURED BY EXECUTIVE ORDER
11491, AS AMENDED, BY THREATENING TO DOWNGRADE HIS ANNUAL PERFORMANCE
APPRAISAL FOR ASSISTING THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
LOCAL 2449.
WE WILL NOT DISCOURAGE EMPLOYEE LOUIS J. DERDEVANIS FROM MEMBERSHIP
IN THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2449, BY
DISCRIMINATING AGAINST HIM IN REGARD TO EVALUATING HIS WORK PERFORMANCE
AND HIS FITNESS FOR PROMOTION BASED ON UNION CONSIDERATIONS.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE EMPLOYEE LOUIS J. DERDEVANIS OR ANY OTHER EMPLOYEE IN THE
EXERCISE OF RIGHTS ASSURED BY EXECUTIVE ORDER 11491, AS AMENDED.
WE WILL RE-EVALUATE EMPLOYEE LOUIS J. DERDEVANIS' WORK PERFORMANCE
FOR THE PERIOD COVERED BY THE JUNE 1977 EVALUATION FOR JOB OPPORTUNITY
ANNOUNCEMENT 161 AND FOR THE PERIOD COVERED BY THE SEPTEMBER 1977 ANNUAL
PERFORMANCE APPRAISAL, AND WILL ENSURE THE RE-EVALUATIONS ARE MADE FREE
FROM ANY REFERENCE TO UNION MEMBERSHIP OR ACTIVITY.
WE WILL TAKE ALL STEPS NECESSARY TO ENSURE THAT THE NEW OFFICIAL
RE-EVALUATING EMPLOYEE LOUIS J. DERDEVANIS WORK PERFORMANCE IS MADE
AWARE OF THE REQUIREMENT THAT CONSIDERATIONS OF UNION MEMBERSHIP OR
ACTIVITY MAY NOT PROPERLY ENTER INTO AN EVALUATION OF AN EMPLOYEE'S WORK
PERFORMANCE.
WE WILL RERUN THE SELECTION PROCESS FOR FILLING THE POSITION THAT WAS
ADVERTISED BY JOB OPPORTUNITY ANNOUNCEMENT 161 IN 1977, FOR THE PURPOSE
OF REAPPRAISING THE FIVE CANDIDATES ON THE ORIGINAL BEST QUALIFIED LIST,
INCLUDING EMPLOYEE LOUIS J. DERDEVANIS, IN AN ATMOSPHERE FREE OF ANY
REFERENCE TO OR CONSIDERATION OF UNION MEMBERSHIP OR ACTIVITY. THE
REAPPRAISAL WILL CONSIDER THE RE-EVALUATION OF EMPLOYEE LOUIS J.
DERDEVANIS' WORK PERFORMANCE FOR THE PERIOD COVERED BY THE JUNE 1977
EVALUATION FOR JOB OPPORTUNITY ANNOUNCEMENT 161 AS MANDATED ABOVE.
WE WILL TAKE ALL STEPS NECESSARY TO ENSURE THAT THE NEW SELECTING
OFFICIAL RERUNNING SELECTION PROCESS IS MADE AWARE OF THE REQUIREMENT
THAT CONSIDERATIONS OF UNION MEMBERSHIP OR ACTIVITY MAY NOT PROPERLY
ENTER INTO AN APPRAISAL OF AN EMPLOYEE'S FITNESS FOR PROMOTION.
(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 ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL
DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY WHOSE ADDRESS IS: 1730 K
STREET, NW, ROOM 401, WASHINGTON, D.C., AND WHOSE TELEPHONE NUMBER IS:
(202) 653-7213.
CASE NO. 22-08768(CA)
EDWARD H. PASSMAN, ESQ.
PASSMAN AND PRICE
1730 RHODE ISLAND AVENUE, NW., SUITE 210
WASHINGTON, D.C. 20036
FOR THE COMPLAINANT
ESSIE A. SCHLOSS, ESQ.
OFFICE OF COUNSEL, HEADQUARTERS,
DEFENSE LOGISTICS AGENCY,
CAMERON STATION
ALEXANDRIA, VIRGINIA 22314
FOR THE RESPONDENT
BEFORE: ELI NASH, JR.
ADMINISTRATIVE LAW JUDGE
RECOMMENDED DECISION AND ORDER
STATEMENT OF THE CASE
PURSUANT TO AN AMENDED COMPLAINT FIRST FILED ON SEPTEMBER 9, 1977,
UNDER EXECUTIVE ORDER 11491, AS AMENDED, BY LOUIS J. DERDEVANIS, AN
INDIVIDUAL (HEREAFTER REFERRED TO AS COMPLAINANT), AGAINST DIRECTORATE
OF SUPPLY OPERATIONS, DEFENSE LOGISTICS HEADQUARTERS (HEREINAFTER
REFERRED TO AS RESPONDENT), A NOTICE OF HEARING WAS ISSUED BY THE
REGIONAL ADMINISTRATOR, PHILADELPHIA, PENNSYLVANIA ON JULY 27, 1978.
ALTHOUGH THIS PROCEEDING WAS CONDUCTED BEFORE THE ASSISTANT SECRETARY OF
LABOR FOR LABOR-MANAGEMENT RELATIONS, THIS DECISION IS ISSUED IN THE
NAME OF THE FEDERAL LABOR RELATIONS AUTHORITY PURSUANT TO TRANSITION
RULES AND REGULATIONS, FEDERAL REGISTER, VOL. 44, NO. 1, JANUARY 2, 1979
(5 C.F.R. 2400.2).
THE COMPLAINT ALLEGES, IN SUBSTANCE, THAT RESPONDENT VIOLATED SECTION
19(A)(1) AND (2) OF THE EXECUTIVE ORDER BY FAILING TO PROMOTE
COMPLAINANT TO A GS-14 POSITION (JOA 161) BECAUSE OF HIS UNION
ACTIVITIES IN ORDER TO DISCOURAGE HIS MEMBERSHIP IN A LABOR
ORGANIZATION. IN ADDITION, THE COMPLAINT ALLEGES THAT ON OR ABOUT
SEPTEMBER 22, 1977, RESPONDENT THROUGH ITS AGENT OR REPRESENTATIVE DAVID
L. H. HOLMES THREATENED TO GIVE COMPLAINANT A LOWER PERFORMANCE ELEMENT
APPRAISAL AND RATING BECAUSE OF HIS UNION ACTIVITIES AND AS A REPRISAL
FOR THE FILING OF AN UNFAIR LABOR PRACTICE CHARGE ON HIS BEHALF BY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2449.
HEARINGS WERE HELD IN THIS MATTER ON OCTOBER 17, 1978 AND DECEMBER
14, 1978, IN WASHINGTON, D.C. ALL PARTIES WERE AFFORDED FULL
OPPORTUNITY TO BE HEARD, TO EXAMINE AND CROSS-EXAMINE WITNESSES, AND
ENTER EVIDENCE RELATED TO THE ISSUES HEREIN.
UPON THE BASIS OF THE ENTIRE RECORD, INCLUDING MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING FINDINGS OF FACT,
CONCLUSIONS AND RECOMMENDATIONS.
FINDINGS OF FACT
BACKGROUND
THE COMPLAINANT WAS FIRST HIRED BY RESPONDENT'S PREDECESSOR AGENCY,
DEFENSE SUPPLY AGENCY IN DECEMBER 1961. HE SERVED WITH THE DEFENSE
GENERAL SUPPLY CENTER, RICHMOND, VIRGINIA UNTIL SEPTEMBER 1968. AT THAT
TIME HE WENT TO WORK IN RESPONDENT'S SUPPLY MANAGEMENT DIVISION AS A
GS-13 INVENTORY MANAGEMENT SPECIALIST. HE WAS REASSIGNED TO HIS PRESENT
JOB IN RESPONDENT'S REQUIREMENT BRANCH IN 1971.
ACCORDING TO COMPLAINANT, HE FIRST JOINED THE UNION AROUND SEPTEMBER
1968. HE PARTICIPATED IN 1969 IN ESTABLISHING THE ELECTION FOR
EXCLUSIVE RECOGNITION BY AFGE LOCAL 2449 FOR RESPONDENT'S HEADQUARTERS
AND FIELD ACTIVITIES AND SERVED IN VARIOUS UNION OFFICES FROM 1969 UNTIL
ELECTED LOCAL PRESIDENT IN NOVEMBER 1973. COMPLAINANT SERVED AS LOCAL
PRESIDENT UNTIL HIS RESIGNATION IN MARCH 1977.
WHILE SERVING AS A UNION OFFICIAL COMPLAINANT WAS PASSED OVER FOR
PROMOTIONS ON SEVERAL OCCASIONS AND ON OTHER OCCASIONS THE POSITION FOR
WHICH HE APPLIED WAS DOWNGRADED. COMPLAINANT TESTIFIED THAT HE WAS
ADVISED ON VARIOUS OCCASIONS BY SEVERAL HIGH-RANKING MANAGEMENT
OFFICIALS, INCLUDING MR. GEORGE BRENNAN, FORMERLY AGENCY STAFF DIRECTOR
OF CIVILIAN PERSONNEL, COLONEL LEONCE E. GAITER, FORMER CHIEF,
TRANSPORTATION DIVISION, AND HERBERT SAUTER, CHIEF DEFENSE DOCUMENTATION
CENTER TO RESIGN AS UNION PRESIDENT TO IMPROVE HIS CHANCES FOR
PROMOTION. ABOUT MAY, 1976, COMPLAINANT DISCUSSED HIS FAILURE TO BE
PROMOTED SPECIFICALLY BECAUSE OF HIS INVOLVEMENT AS A UNION OFFICIAL
WITH COLONEL JOHN J. MCALEER, JR., CHIEF, DLA ADMINISTRATIVE SUPPORT
CENTER, THE AGENCY'S PRINCIPAL CONTACT ON LABOR-MANAGEMENT RELATIONS
MATTERS WHO SUGGESTED THAT COMPLAINANT SPEAK TO MAJOR GENERAL JOHN C.
RAAEN, JR., THE THEN ACTING DEPUTY DIRECTOR OF THE AGENCY. /6/ DURING
THE CONVERSATION COMPLAINANT MENTIONED SEVERAL REASONS WHICH HE BELIEVED
PREVENTED HIS SELECTION. ALSO, HE GAVE GENERAL RAAEN A LIST OF THE
PROMOTIONS WHICH HE HAD APPLIED FOR SINCE MAY 1974 BUT WAS NOT SELECTED.
AFTER DISCUSSING THE MATTER WITH LIEUTENANT GENERAL VAUGHN, THEN
AGENCY HEAD AND MR. BRENNAN WHO STATED THAT THERE WAS NO RECOURSE
WITHOUT A FORMAL COMPLAINT, GENERAL RAAEN AND COLONEL MCALEER BOTH
INFORMED COMPLAINANT THAT THEY WERE CONVINCED HE HAD BEEN DISCRIMINATED
AGAINST, CITING THE STATISTICAL PROBABILITIES AND HIS QUALIFICATIONS
ALTHOUGH ADMITTING IT WAS DIFFICULT TO PROVE. APPARENTLY NO FORMAL
INVESTIGATION OF THE COMPLAINT WAS UNDERTAKEN AT THAT TIME.
ABOUT TWO WEEKS LATER ON A THURSDAY OR FRIDAY AFTERNOON FOLLOWING ASH
WEDNESDAY IN 1976, GENERAL RAAEN INDICATED TO COLONEL MCALEER THAT HE
HAD DISCUSSED COMPLAINANT'S PROBLEM WITH THE CIVILIAN PERSONNEL
DIRECTOR, MR. GEORGE BRENNAN AND THAT HE WAS GOING TO DO SOMETHING ABOUT
IT. COLONEL MCALEER CONVEYED THE MESSAGE TO COMPLAINANT AND TOLD HIM TO
GO HOME AND HAVE A GOOD WEEKEND, BECAUSE "I THINK SOMETHING IS GOING TO
BE DONE." /7/ IN JUNE 1976, GENERAL RAAEN WAS ASSIGNED TO ANOTHER
RESPONSIBILITY AT THE AGENCY. SUBSEQUENTLY, IN SEPTEMBER 1976, MR.
BRENNAN RETIRED FROM GOVERNMENT SERVICE. WITH THIS IN MIND, COMPLAINANT
AGAIN RAISED THE QUESTION OF PROMOTION WITH COLONEL MCALEER. COLONEL
MCALEER THEN MET WITH GENERAL RAAEN AND MR. BRENNAN, WITH A VIEW TOWARD
CONVEYING TO GENERAL RAAEN'S SUCCESSOR AND TO THE DEPUTY PERSONNEL
DIRECTOR WHAT WAS GOING ON IN COMPLAINANT'S CASE. AT THIS MEETING,
COLONEL MCALEER WAS ASKED BY GENERAL RAAEN IF COMPLAINANT WOULD SETTLE
FOR RETROACTIVE PROMOTION. THE COLONEL REPORTED THAT COMPLAINANT WOULD
SETTLE FOR A PROMOTION PERIOD.
SOMETIME DURING AUGUST OR SEPTEMBER 1976, COLONEL MCALEER INQUIRED
WHETHER COMPLAINANT WOULD ACCEPT A PROMOTION TO GS-14 RETROACTIVE TO HIS
LAST BYPASS. HE WAS INFORMED THAT COMPLAINANT WOULD ACCEPT A PROMOTION
WITHOUT RETROACTIVITY WHICH WOULD BE A GOOD BIRTHDAY PRESENT. IN
SEPTEMBER, 1976, MR. BRENNAN RETIRED AND COMPLAINANT WAS ASSURED BY HIM
AT HIS RETIREMENT CEREMONY THAT EVERYTHING WAS BEING TAKEN CARE OF IN
REGARD TO HIS PROMOTION. IN LATE NOVEMBER, 1976 WHEN NOTHING HAD
HAPPENED, COLONEL MCALEER SUGGESTED A MEETING WITH GENERAL VAUGHN, WHICH
TOOK PLACE ON DECEMBER 8, 1976 WITH ADMIRAL CROSBY, DEPUTY DIRECTOR AND
COLONEL MCALEER PRESENT. COMPLAINANT LEFT A LETTER AND BACKUP MATERIAL
WITH GENERAL VAUGHN WHO LATER SENT HIM A RESPONSE DATED APRIL 8, 1977
CLAIMING THERE HAD BEEN NO DISCRIMINATION.
IN DECEMBER, 1976, COMPLAINANT DISCOVERED THAT JACK CHELEMER, GS-14
INVENTORY MANAGEMENT SPECIALIST, REQUIREMENTS BRANCH WHO WAS ON
EXTENDED
SICK LEAVE BECAUSE OF A BACK INJURY WAS GOING TO RETIRE. FROM JANUARY
TO MARCH, 1977 COMPLAINANT ASSUMED APPROXIMATELY 75% OF MR. CHELEMER'S
WORK IN ADDITION TO HIS OWN DUTIES. SINCE HE WAS PREPARING TO COMPETE
FOR THIS POSITION IN HIS OWN BRANCH, FOLLOWING THE EARLIER ADVICE OF THE
MANAGEMENT OFFICIALS PREVIOUSLY CITED, COMPLAINANT RESIGNED AS UNION
PRESIDENT EFFECTIVE APRIL 1, 1977.
A LUNCHEON WAS HELD IN COMPLAINANT'S HONOR IN MAY, 1977 AT WHICH TIME
COMPLAINANT WAS PRESENTED WITH A SILVER PLAQUE FOR HIS SERVICES TO THE
LABOR ORGANIZATION. LATER THAT SAME AFTERNOON WHEN LOOKING FOR A PLACE
IN HIS OFFICE TO DISPLAY THE PLAQUE, HE WAS INFORMED BY HIS SUPERVISOR,
MR. HOLMES, "THE PROPER PLACE FOR THIS PLAQUE IS THE HOME, . . . AND WHY
DON'T YOU TAKE IT HOME AND END THIS UNION BUSINESS OR SOMETHING LIKE
THAT AND ONCE AND FOR ALL . . . TAKE IT WITH YOU". EARLIER IN MAY
1976, MR. HOLMES HAD TOLD COMPLAINANT THAT HE SHOULD "CONCERN YOURSELF
MORE WITH WORK RATHER THAN WITH UNION AFFAIRS IT WOULD BE TO YOUR
ADVANTAGE." MR. HOLMES TOLD COMPLAINANT THAT HE WAS ALWAYS FINDING AN
EXCUSE TO BE AWAY FROM THE OFFICE AND AWAY FROM HIS WORK. SIMILARLY, IN
DECEMBER, 1976, MR. HOLMES HAD REMARKED THAT COMPLAINANT DID NOT ATTEND
THE DIRECTOR'S TRADITIONAL NEW YEAR'S RECEPTION BECAUSE IT WAS ON HIS
OWN TIME. ALSO, MR. HOLMES ALLEGEDLY SLAMMED HIS DOOR SHUT ON OCCASIONS
WHEN COMPLAINANT WAS CALLED TO THE TELEPHONE ON UNION BUSINESS.
II. JOA 161.
IN AUGUST 1977 COMPLAINANT APPLIED FOR JOA 161, AS AN INVENTORY
MANAGEMENT SPECIALIST, GS-2010-14, THE JOB HE WAS FILLING FOR MR.
CHELEMER. COMPLAINANT WAS PLACED ON THE BEST QUALIFIED LIST WITH A
RATING OF 89.4. COMPLAINANT PREVIOUSLY HAD RECEIVED AN EVALUATION FROM
HIS SUPERVISOR SPECIFICALLY FOR JOA 161 IN WHICH HE WAS RATED "SUPERIOR"
ON ALL ELEMENTS BUT RECEIVED NO "CLEARLY OUTSTANDING" RATING ALTHOUGH
OTHER EMPLOYEES IN THE BRANCH ALLEGEDLY RECEIVED SOME OUTSTANDING
ELEMENTS. HE WAS ALSO INTERVIEWED FOR THE POSITION BY MR. HOLMES.
COMPLAINANT WAS THEN NOTIFIED BY MAIL THAT HE HAD NOT BEEN SELECTED FOR
THE POSITION ALTHOUGH RANKED AMONG THE BEST QUALIFIED APPLICANTS.
AT THE TIME OF THE NON-SELECTION FOR JOA 161, COMPLAINANT HAD 28
YEARS FEDERAL SERVICE, THE PREVIOUS 9 YEARS AS A GS-13 INVENTORY
MANAGEMENT SPECIALIST. WHILE COMPLAINANT RECEIVED 64 OUT OF A POSSIBLE
65 POINTS ON EXPERIENCE, HE RECEIVED ONLY 15.4 OUT OF A POSSIBLE 20
POINTS ON HIS APPRAISAL BECAUSE OF THE LACK OF CLEARLY OUTSTANDINGS
WHICH RESULTED IN A SCORE OF 89.4 COMPARED TO THE SELECTEE'S 91.9.
COMPLAINANT WAS THE ONLY EMPLOYEE OF THE REQUIREMENTS BRANCH WHO WAS A
CANDIDATE FOR THE JOB. AS ALREADY STATED THE SELECTEE FOR THE JOB HAD A
HIGHER RATING THAN COMPLAINANT'S 89.4 AND COMPLAINANT WAS NUMBER FOUR ON
THE BEST QUALIFIED LIST.
FOLLOWING THE NON-SELECTION, COMPLAINANT REQUESTED A MEETING WITH MR.
HOLMES, THE SELECTING OFFICIAL FOR JOA 161. IN EARLY, SEPTEMBER, 1977,
THE TWO MET AND MR. HOLMES SHOWED COMPLAINANT HIS ANNUAL PERFORMANCE
ELEMENT APPRAISAL AND RATING FOR THE PERIOD 8/31/76 TO 8/31/77 WHICH HE
HAD PREPARED FOR COMPLAINANT'S SIGNATURE. AFTER REVIEWING THE RATING
WITH WHICH HE DID NOT AGREE, COMPLAINANT REQUESTED A FULL DISCUSSION OF
THE RATING AND THE NON-SELECTION WHICH MR. HOLMES HAD DEFERRED.
ON SEPTEMBER 22, 1977, A MEETING WAS HELD IN MR. HOLMES' OFFICE WHICH
LASTED ABOUT TWO HOURS. COMPLAINANT ASKED SPECIFICALLY WHY HE WAS NOT
SELECTED FOR THAT VACANCY. MR. HOLMES' RESPONDED THAT HE HAD NOT BEEN
SELECTED BECAUSE OF THE "WEAKNESSES" IN HIS PERFORMANCE. COMPLAINANT
HAD NEVER BEEN ADVISED OR COUNSELED OF ANY SUCH WEAKNESSES, AND IN FACT,
THE RECORD SHOWS HAD BEEN COMPLIMENTED ON SEVERAL OCCASIONS PRIOR TO
THIS MEETING FOR HIS PERFORMANCE AND ATTITUDE IN TAKING UP THE SLACK DUE
TO MR. CHELEMER'S ABSENCE. COMPLAINANT ASKED FOR SPECIFICS OF HIS
WEAKNESSES BUT MR. HOLMES DID NOT OR WAS UNABLE TO FURNISH ANY.
COMPLAINANT THEN REQUESTED THAT HE DO SO IN WRITING WHEN HE THOUGHT OF
THEM.
TURNING TO THE ANNUAL PERFORMANCE APPRAISAL AND RATING WHERE
COMPLAINANT HAD RECEIVED ALL SUPERIOR RATINGS EXCEPT FOR NUMBERS 19 AND
20 WHICH WERE MARKED "NONRATABLE". WHEN COMPLAINANT EXPRESSED CONCERN
ABOUT NOT RECEIVING ANY "CLEARLY OUTSTANDINGS" MR. HOLMES, ACCORDING TO
COMPLAINANT, RESPONDED:
"WELL, LOU, YOU KNOW, IF I WERE RANKING YOU FOR YOUR WORK THAT YOU
HAVE DONE FOR THE
UNION," HE SAYS, "I WOULD GIVE YOU OUTSTANDING IN ALL ELEMENTS; BUT
BECAUSE OF YOUR ABSENCE,
YOU HAVEN'T BEEN HERE TO DO THE WORK FOR ME," HE SAYS, "I CAN'T RANK
YOU AS I WOULD FOR THE
UNION, BECAUSE OF YOUR ABSENCES. YOU HAVEN'T BEEN HERE TO PERFORM
THE WORK THAT YOU HAVE
RECENTLY."
COMPLAINANT PROTESTED, STATING THAT HIS UNION WORK WAS IN ACCORDANCE
WITH THE EXECUTIVE ORDER AND HE WOULD MAKE HIS REMARKS A MATTER OF
RECORD. MR. HOLMES ALLEGEDLY BECAME UPSET AND STATED THAT IF
COMPLAINANT FOLLOWED THROUGH WITH HIS INTENTION TO RECORD HIS REMARK, HE
"MIGHT BE INCLINED TO DOWN-GRADE SOME OF THE ELEMENTS THAT I HAVE GIVEN
YOU A SUPERIOR ON-- REREVIEW OF YOUR PERFORMANCE APPRAISAL." COMPLAINANT
TOLD MR. HOLMES THAT HE COULD DO AS HE SAW FIT, BUT NO MATTER, HE WOULD
STILL MAKE HIS STATEMENTS A MATTER OF RECORD WITH THE UNION. THE
MEETING WAS ADJOURNED AND COMPLAINANT WENT TO SEE THE AFGE LOCAL
PRESIDENT, COSTA E. APOSTALAKIS, AND PROCEEDED TO WRITE DOWN OF THE
PRIOR CONVERSATION.
MR. DANIEL R. TREADWAY, ASSISTANT CHIEF, SUPPLY MANAGEMENT DIVISION
SINCE AUGUST 1975 TESTIFIED THAT HE HAD SUPERVISED COMPLAINANT FROM 1970
TO 1975. MR. TREADWAY ALSO TESTIFIED THAT HE HAD BEEN THE SELECTING
OFFICIAL ON AT LEAST ONE OCCASION WHEN COMPLAINANT WAS NOT SELECTED.
THIS NON-SELECTION OCCURRED IN THE FALL OF 1975 AND COMPLAINANT WAS NOT
SELECTED BECAUSE SEVERAL OTHER PEOPLE ON THE SELECTION CERTIFICATE HAD
MANY MORE YEARS OF SPECIFIC POLICY AND PROCEDURAL DEVELOPMENT OF THE
STOCK CONTROL AND DISTRIBUTION AREA THAN COMPLAINANT. ALTHOUGH STATING
THAT COMPLAINANT'S UNION ACTIVITIES PLAYED NO PART IN HIS NOT BEING
SELECTED MR. TREADWAY EARLIER NOTED THAT COMPLAINANT SPENT A MAJORITY OF
HIS TIME ON UNION BUSINESS.
ACCORDING TO MR. TREADWAY, COMPLAINANT'S UNION ACTIVITIES WERE NEVER
DISCUSSED DURING SELECTIONS, BUT HE ADDED, "IT WAS GENERALLY WELL KNOWN
THAT HE WAS PRESIDENT OF THE UNION, AND HE SPENT A LOT OF TIME ON IT,
AND HE WAS VERY GOOD AT IT." ADMITTEDLY, MR. TREADWAY DISCUSSED THE
AMOUNT OF TIME COMPLAINANT WAS SPENDING ON UNION ACTIVITIES WITH HIS
SUPERIORS.
COMPLAINANT'S IMMEDIATE SUPERVISOR AND THE SELECTING OFFICIAL FOR JOA
161 MR. HOLMES TESTIFIED THAT COMPLAINANT WAS A SATISFACTORY BUT NOT
OUTSTANDING EMPLOYEE. HE FURTHER CONFIRMED THAT BETWEEN JANUARY 1977
AND THE SELECTION FOR JOA 161 COMPLAINANT PERFORMED ABOUT 75% OF THE
WORK IN THE JOB FOR WHICH HE WAS NOT SELECTED. MR. HOLMES ALSO
TESTIFIED THAT HE SELECTED THE BEST QUALIFIED OF FIVE CANDIDATE FOR JOA
161. ACCORDING TO MR. HOLMES, THE SELECTEE HAD A VERY INTIMATE DETAILED
KNOWLEDGE OF THE REQUIREMENTS SYSTEM, KNEW ALL OF THE PROCEDURE, AND WAS
QUITE FAMILIAR WITH THE MATHEMATICS INVOLVED IN DEVELOPING SOME OF THE
REQUIREMENTS FORECASTING PRODUCTS. BY CONTRAST, HE FELT THAT
COMPLAINANT WAS NOT AS KNOWLEDGEABLE IN THE DETAIL MATHEMATICAL
FORMULATIONS AND THAT HE FELT THERE WAS A NEED FOR SOMEONE TO BE
KNOWLEDGEABLE IN THE FORMULAS WITHIN THE BRANCH. HE ACKNOWLEDGED THAT
COMPLAINANT AT THE TIME OF THE SELECTION FOR JOA 161 WAS NO LONGER
ACTIVE IN THE UNION AND SPENDING 100 PERCENT OF HIS TIME ON THE JOB.
FINALLY, HE TESTIFIED THAT HE COMPLIMENTED COMPLAINANT ON HIS JOB
PERFORMANCE AFTER JANUARY 1977 ON SEVERAL OCCASIONS.
POSITIONS OF THE PARTIES
THE COMPLAINANT CONTENDS THAT BUT FOR HIS UNION ACTIVITIES HE WOULD
HAVE BEEN SELECTED FOR PROMOTION IN JOA 161. HE CONTENDS FURTHER THAT
THE MERE REFERENCE TO UNION ACTIVITIES IN HIS PERFORMANCE APPRAISAL IS
VIOLATIVE OF SECTION 19(A)(1). ON THE OTHER HAND, RESPONDENT ARGUES
THAT WHILE COMPLAINANT WAS PASSED OVER ON MANY OCCASIONS, ON EACH
OCCASION SOMEONE WITH SUPERIOR CREDENTIALS AND EXPERIENCE WAS SELECTED.
RESPONDENT ALSO CONTENDS THAT REFERENCE TO COMPLAINANT'S UNION
ACTIVITIES IN THE SEPTEMBER 22, 1977 DISCUSSION WITH MR. HOLMES WAS NOT
VIOLATIVE OF THE ORDER.
CONCLUSIONS OF LAW
THE ONLY NON-SELECTION ALLEGED AS VIOLATIVE OF THE ORDER IS THE
AUGUST 1977 NON-SELECTION FOR APPROXIMATELY 9 POSTINGS AND ENGAGED MANY
CONVERSATION WITH MANAGEMENT REGARDING HIS CONCERNS, THESE ACTIVITIES
TOOK PLACE WELL BEFORE A COMPLAINT WAS FILED IN CONNECTION WITH THE NON
SELECTION INVOLVED IN JOA 161. ACCORDINGLY, IN REACHING A DECISION
HEREIN, CONSIDERATION HAS BEEN GIVEN TO THE PRIOR NON-SELECTION AND
COMPLAINANT'S CONTACT WITH VARIOUS MANAGEMENT OFFICIALS ONLY FOR
PURPOSES OF BACKGROUND IN CONNECTION WITH THE RELEVANT EVENTS WHICH
OCCURRED WITHIN THE SIX MONTH PERIOD PRECEDING THE PRE-COMPLAINT CHARGE.
VETERANS ADMINISTRATION, VETERANS ADMINISTRATION HOSPITAL, MUSKOGEE,
OKLAHOMA, A/SLMR NO. 301.
THE REMARKS BY MR. HOLMES, AT THE SEPTEMBER 22, 1977 MEETING
CONCERNING DOWNGRADING OF THE ANNUAL PERFORMANCE RATING WHEN VIEWED IN
CONTEXT WITH EARLIER REMARKS ABOUT COMPLAINANT'S INVOLVEMENT IN UNION
AFFAIRS IS CLEARLY COERCIVE IN NATURE AND INDICATES THAT ADHERENCE TO A
UNION COULD RENDER ONE UNFIT FOR OUTSTANDING EVALUATIONS. COMPLAINANT
IS CREDITED REGARDING THESE REMARKS WHICH COULD BE VIEWED AS IMPLYING
THAT COMPLAINANT'S PAST ACTIVE ROLE AS A UNION PRESIDENT SIMPLY DID NOT
ALLOW HIM TO PROPERLY DISCHARGE HIS RESPONSIBILITIES AS AN EMPLOYEE AND
THAT HE COULD NOT RECEIVE THE COVETED OUTSTANDING RATING. THE LATTER
FOLLOW TOO CLOSELY ON THE HEELS OF HOLMES EARLIER COMMENTS TO BE
DISREGARDED. IN THIS RESPECT, IT IS NOTED THAT COMPLAINANT WAS, AS
UNION PRESIDENT, PROPERLY EXERCISING RIGHTS GUARANTEED BY THE ORDER AND
SUCH REMARKS INTERFERED WITH, RESTRAINED AND COERCED HIM IN THE EXERCISE
OF RIGHTS ASSURED UNDER THE ORDER.
IT IS MY CONCLUSION, NEVERTHELESS, THAT RESPONDENT DID NOT VIOLATE
SECTION 19(A)(2) OF THE ORDER BY NOT SELECTING COMPLAINANT FOR JOA 161.
THE DISCRIMINATORY BASIS FOR NON-SELECTION OF COMPLAINANT PRIOR TO JOA
161 WAS PURE SPECULATION ENGAGED IN BETWEEN COMPLAINANT AND SEVERAL HIGH
MANAGEMENT OFFICIALS INCLUDING COLONEL MCALEER, GENERAL RAAEN AND MR.
BRENNAN. COMPLAINANT'S RELATIONSHIP WITH THESE MANAGEMENT OFFICIAL
APPEARS TO HAVE BEEN FAIRLY CLOSE AND HIS PERSPECTIVE WAS OF COURSE
INFLUENCED, BY THE CONJECTURE OF THESE OFFICIALS THAT HE WAS BEING
PASSED OVER BECAUSE OF HIS UNION PRESIDENCY. THE TESTIMONY OF COLONEL
MCALEER AND GENERAL RAAEN CONFIRM THAT THEY WERE ENGAGED IN SHEER
SPECULATION AS TO COMPLAINANT PLIGHT. I NOTE THAT GENERAL VAUGHN WHO
WAS APPARENTLY BEING PRESSED TO ACT ON COMPLAINANT'S BEHALF BY
INFLUENTIAL MEMBERS OF HIS STAFF FOUND THAT NO DISCRIMINATION EXISTED IN
THE EARLIER NON-SELECTIONS OF COMPLAINANT. THESE EVENTS PRIOR TO JOA
161 ALMOST CERTAINLY INFLUENCED COMPLAINANT'S FEELING THAT ALL HIS
DIFFICULTY WAS BASED ON HIS UNION ACTIVITIES, HOWEVER, THERE IS NO
RECORD SUPPORT FOR THIS FEELING.
MOVING TO JOA 161, IT IS CLEAR ON THE RECORD THAT COMPLAINANT WAS NO
LONGER A UNION OFFICER AT THE TIME OF SELECTION. ALTHOUGH ALREADY
PERFORMING THE JOB HE WAS RANKED ONLY FOURTH ON THE "BEST QUALIFIED
LIST". WHILE IT IS OBVIOUS FROM THE RECORD THAT MR. HOLMES AT LEAST
SUBJECTIVELY CONSIDERED COMPLAINANT'S UNION BACKGROUND WHEN EVALUATING
THE WHOLE INDIVIDUAL FOR THE JOB, I BELIEVE THAT HIS SELECTION WAS NOT
BASED ON UNION CONSIDERATIONS, BUT UPON HIS CRITERIA FOR SELECTING THE
BEST QUALIFIED INDIVIDUAL FOR THE JOB, WHICH INCLUDED HAVING A
MATHEMATICAL BACKGROUND WHICH COMPLAINANT DID NOT HAVE.
AS I AM UNABLE TO FIND THAT COMPLAINANT WOULD HAVE BEEN SELECTED BUT
FOR HIS ACTIVITIES ON BEHALF OF THE UNION, I MUST CONCLUDE THAT NO
DISCRIMINATION BASED ON UNION CONSIDERATIONS HAS BEEN ESTABLISHED. ON
THE OTHER HAND, THE POSSIBILITY EXISTS THAT COMPLAINANT MIGHT HAVE BEEN
SELECTED, HAD HE BEEN RATED FOR HIS JOB ABSENT CONSIDERATION OF HIS
UNION ACTIVITIES. IT MUST BE CONCLUDED, THEREFORE, THAT RESPONDENT'S
VIOLATION OF 19(A)(1) CAN PROPERLY BE REMEDIED ONLY BY REQUIRING THAT
COMPLAINANT BE RERATED AND THAT THE SELECTION PROCESS BE RERUN BY A
SELECTING OFFICIAL OTHER THAN MR. HOLMES. ALTHOUGH COMPLAINANT HAS NOT
IN MY VIEW ESTABLISHED THAT HE WAS DISCRIMINATORILY NON-SELECTED, IT HAS
BEEN ESTABLISHED THAT RESPONDENT'S VIOLATION OF SECTION 19(A)(1) MAY
HAVE DEPRIVED COMPLAINANT OF THE OPPORTUNITY TO SUCCESSFULLY COMPETE FOR
PROMOTION. THE CONSEQUENCES OF SUCH A REAPPRAISAL SHOULD, IF FAVORABLE
TO COMPLAINANT, BE PROSPECTIVE IN EFFECT.
RECOMMENDATIONS
HAVING FOUND THAT RESPONDENT HAS ENGAGED IN CERTAIN CONDUCT WHICH IS
VIOLATIVE OF SECTION 19(A)(1) OF THE ORDER, I RECOMMEND THAT THE FEDERAL
RELATIONS AUTHORITY ADOPT THE FOLLOWING ORDER DESIGNED TO EFFECTUATE THE
PURPOSE OF EXECUTIVE ORDER 11491, AS AMENDED. WITH REGARD TO THE
ALLEGATION OF A DISCRIMINATORY FAILURE TO PROMOTE LOUIS D. DERDEVANIS ON
AUGUST 8, 1977, IN VIOLATION OF THE ORDER, IT IS RECOMMENDED THAT THE
COMPLAINT BE DISMISSED.
RECOMMENDED ORDER
PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491, AS AMENDED, AND
SECTION 203.25(B), AND SECTION 2400.2 OF THE TRANSITION RULES AND
REGULATIONS, 5 C.F.R. 2400.2, FED. REG., VOL. 44, NO. 1, JANUARY 2,
1979 HEREBY ORDERS THAT DIRECTORATE OF SUPPLY OPERATIONS, DEFENSE
LOGISTICS AGENCY HEADQUARTERS, CAMERON STATION, VIRGINIA SHALL:
1. CEASE AND DESIST FROM:
(A) INTERFERING WITH, RESTRAINING, OR COERCING MR. LOUIS D.
DERDEVANIS, OR ANY OTHER EMPLOYEE, IN THE EXERCISE OF THEIR RIGHTS
ASSURED BY EXECUTIVE ORDER 11491, AS AMENDED, TO JOIN AND ASSIST A LABOR
ORGANIZATION.
(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED BY EXECUTIVE
ORDER 11491, AS AMENDED.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
PURPOSES AND PROVISIONS OF EXECUTIVE ORDER 11491, AS AMENDED.
(A) POST AT ITS FACILITY AT THE DIRECTORATE OF SUPPLY OPERATIONS,
DEFENSE LOGISTICS AGENCY HEADQUARTERS, CAMERON STATION, VIRGINIA, 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 AN APPROPRIATE MANAGEMENT OFFICIAL AND SHALL BE
POSTED AND MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS THEREAFTER, IN
CONSPICUOUS PLACES, INCLUDING ALL BULLETIN BOARDS AND OTHER PLACES WHERE
NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED. SAID OFFICIAL SHALL TAKE
REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED,
OR COVERED BY ANY OTHER MATERIAL.
(B) CAUSE A NEW POSTING OF JOA 161 TO BE CONVENED, FOR THE PURPOSE OF
REAPPRAISING THE FIVE CANDIDATES IN AN ATMOSPHERE FREE OF ANY REFERENCE
TO UNION MEMBERSHIP OR ACTIVITIES.
(C) TAKE STEPS TO ENSURE THAT ALL SELECTING OFFICIALS ARE MADE AWARE
OF THE REQUIREMENT THAT CONSIDERATIONS OF UNION MEMBERSHIP AND ACTIVITY
MAY NOT PROPERLY ENTER THEIR DELIBERATIONS AND ARE NOT A PROPER SUBJECT
OF DISCUSSION IN ANY INTERVIEWS OR MAY NOT ENTER INTO CONSIDERATION IN
PROMOTION SELECTIONS.
(D) PURSUANT TO SECTION 203.26 OF THE REGULATIONS AND SECTION 2400.2
OF THE TRANSITION RULES AND REGULATIONS NOTIFY THE FEDERAL LABOR
RELATIONS AUTHORITY, IN WRITING, WITHIN 20 DAYS FROM THE DATE OF THIS
ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
IT IS FURTHER ORDERED THAT THE COMPLAINT, INSOFAR AS IT ALLEGES
VIOLATIONS OF SECTION 19(A)(2) BE, AND IT HEREBY IS, DISMISSED.
. . .
ELI NASH, JR.
ADMINISTRATIVE LAW JUDGE
DATED: 3 AUG 1979
WASHINGTON, D.C.
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 EXECUTIVE ORDER 11491, AS AMENDED
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT INTERROGATE OUR EMPLOYEES AS TO THEIR MEMBERSHIP AND/OR
ACTIVITIES IN THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL
2449 OR ANY OTHER LABOR ORGANIZATION.
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 TAKE APPROPRIATE STEPS TO REAPPRAISE MR. LOUIS J. DERDEVANIS
AND ALL OTHER CANDIDATES FOR THE POSITION OF INVENTORY MANAGEMENT
SPECIALIST AND WILL ENSURE THAT MATTERS RELATING TO MEMBERSHIP OR
NONMEMBERSHIP IN AFGE LOCAL 1224 WILL NOT ARISE EITHER IN EMPLOYEE
APPRAISALS OR IN THE INTERVIEWS.
(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 ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL
DIRECTOR FOR FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS IS: 1111
20TH STREET, N.W., ROOM 416, WASHINGTON, D.C. 20036.
/1/ THE COMPLAINANT FILED UNTIMELY EXCEPTIONS WHICH WERE NOT
CONSIDERED. ACCORDINGLY, THE RESPONDENT'S REQUEST TO FILE AN ANSWERING
BRIEF WAS DENIED.
/2/ U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, MILWAUKEE AREA
OFFICE, MILWAUKEE, WISCONSIN, 7 A/SLMR 948, 949, A/SLMR NO. 925 (1977).
/3/ DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, SOCIAL SECURITY
ADMINISTRATION, BUREAU OF HEARINGS AND APPEALS, REGION II, SAN JUAN,
PUERTO RICO, 8 A/SLMR 1092, 1093, A/SLMR NO 1127 (1978).
/4/ THE FEDERAL LABOR RELATIONS COUNCIL NOTED THAT IN ORDER TO MAKE A
VALID AWARD OF BACKPAY UNDER THE BACK PAY ACT OF 1966, 5 U.S.C. SECTION
5596, IT IS NECESSARY NOT ONLY TO FIND THAT AN EMPLOYEE HAS BEEN
ADVERSELY AFFECTED BY AGENCY MANAGEMENT'S IMPROPER ACTION, BUT ALSO THAT
"BUT FOR" THE IMPROPER ACTION THE EMPLOYEE WOULD NOT HAVE SUFFERED A
LOSS OR REDUCTION IN PAY, ALLOWANCES, OR DIFFERENTIALS. MARE ISLAND
NAVAL SHIPYARD AND MARE ISLAND NAVY YARD METAL TRADES COUNCIL, AFL-CIO,
4 FLRC 143, 149, FLRC NO. 74A-64 (1976). COMPARE U.S. DEPARTMENT OF
HOUSING AND URBAN DEVELOPMENT, MILWAUKEE AREA OFFICE, MILWAUKEE,
WISCONSIN, 7 A/SLMR 948, A/SLMR NO. 925 (1977) WHERE THE RANK ORDER OF
EMPLOYEES ELIGIBLE FOR PROMOTION WAS SOLELY DETERMINATIVE OF WHETHER
THEY WERE PROMOTED.
/5/ 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, AS 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 EITHER THE
MEANING OR APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR THE
RESULT WHICH WOULD HAVE BEEN REACHED BY THE AUTHORITY IF THE CASE HAD
ARISEN UNDER THE STATUTE RATHER THAN THE EXECUTIVE ORDER.
/6/ ON OTHER OCCASIONS IT APPEARS THAT COMPLAINANT ATTRIBUTED HIS
FAILURE TO BE PROMOTED TO AGE AND RELIGION AS WELL AS HIS UNION
ACTIVITIES.
/7/ THESE AND OTHER FACTS WERE CHARACTERIZED BY COMPLAINANT AS THE
"DERDEVANIS COMMITTMENT".