Environment Protection Agency and Environmental Protection Agency, Region III (Respondents) and American Federation of Government Employees, Local 3631, AFL-CIO (Complainant) 

 



[ v02 p170 ]
02:0170(18)CA
The decision of the Authority follows:


 2 FLRA No.18
 
 ENVIRONMENTAL PROTECTION AGENCY
 
 and
 
 ENVIRONMENTAL PROTECTION AGENCY,
 REGION III
 Respondents
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 3631, AFL-CIO
 Complainant
 
                                            Assistant Secretary
                                            Case No. 20-06234(CA)
 
                            DECISION AND ORDER
 
    ON JUNE 12, 1979, ADMINISTRATIVE LAW JUDGE ROBERT J. FELDMAN ISSUED
 HIS RECOMMENDED DECISION AND ORDER IN THE ABOVE-ENTITLED PROCEEDING
 FINDING THAT THE RESPONDENT HAD NOT ENGAGED IN THE UNFAIR LABOR
 PRACTICES ALLEGED IN THE COMPLAINT, AND RECOMMENDING THAT THE COMPLAINT
 BE DISMISSED IN ITS ENTIRETY.  NO EXCEPTIONS WERE FILED TO THE
 ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER.
 
    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
 (44 F.R. 44741, JULY 30, 1979).  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 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, AND NOTING PARTICULARLY THAT NO EXCEPTIONS WERE FILED, THE
 AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS,
 CONCLUSIONS AND RECOMMENDATION.  /1/
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN ASSISTANT SECRETARY CASE
 NO. 20-06234(CA) BE, AND IT HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., NOVEMBER 29, 1979
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    JAY D. GOLDSTEIN, ESQUIRE
 
    ASSISTANT REGIONAL COUNSEL
 
    U.S. ENVIRONMENTAL PROTECTION AGENCY
 
    6TH AND WALNUT STREETS
 
    PHILADELPHIA, PENNSYLVANIA 19106
 
    DAVID LANGFORD
 
    PRESIDENT, AFGE, LOCAL 3631
 
    6TH AND WALNUT STREETS
 
    PHILADELPHIA, PENNSYLVANIA 19106
 
                            FOR THE COMPLAINANT
 
    BEFORE:  ROBERT J. FELDMAN
 
    ADMINISTRATIVE LAW JUDGE
 
                           RECOMMENDED DECISION
 
    THIS IS AN UNFAIR LABOR PRACTICE PROCEEDING IN WHICH A FORMAL HEARING
 OF RECORD WAS HELD PURSUANT TO EXECUTIVE ORDER 11491, AS AMENDED,
 (HEREINAFTER REFERRED TO AS "THE ORDER") AND 29 CFR, PART 203.  THE
 DECISION AND ORDER THAT FOLLOWS IS ISSUED FOR THE FEDERAL LABOR
 RELATIONS AUTHORITY IN ACCORDANCE WITH THE TRANSITION RULES AND
 REGULATIONS PUBLISHED IN THE FEDERAL REGISTER, VOL. 44, NO. 1, JANUARY
 2, 1979, PP. 5-8.
 
                           STATEMENT OF THE CASE
 
    THE COMPLAINT HEREIN IS PROLIX, OBSCURE AND TAUTOLOGICAL.  IN 129
 TORTUOUS PAGES, IT ALLEGES THAT THE ACTIVITY (E.P.A., REGION III) AND
 ITS PARENT AGENCY (E.P.A.) HAVE VIOLATED SECTIONS 19(A)(1), (2), (4) AND
 (6) OF THE ORDER IN THAT THEY HAVE ALLOWED, ENCOURAGED AND PARTICIPATED
 IN ACTS AND PATTERNS OF VIOLATIONS OF THE ORDER.  THE ACTS AND PATTERNS
 COMPLAINED OF INCLUDE:
 
    (S)STONEWALLING AND INTERMINABLE DELAYS, HARASSMENT, REPRISAL,
 WHITEWASHING, CONDONING OF
 
    IMPROPER TREATMENT OF UNION CONCERNS AND OF UNION ACTIVISTS, AND
 REFUSING TO DEAL IN GOOD
 
    FAITH WITH THE (U)NION TO DISCUSS AND RESOLVE ALLEGATIONS OF IMPROPER
 TREATMENT OF ACTIVISTS.
 
    BY DINT OF WHAT MUST HAVE BEEN HEROIC TENACITY AND SAINTLY PATIENCE,
 THE REGIONAL ADMINISTRATOR DISTILLED FROM THE MASS OF DIFFUSE CHARGES
 AND INAPPROPRIATE EVIDENTIARY MATERIAL COMPRISING THE COMPLAINT THE
 FOLLOWING REMARKABLY CONCISE STATEMENT OF THE ISSUES PRESENTED FOR
 DETERMINATION:
 
    WHETHER THE RESPONDENTS HAVE VIOLATED SECTIONS 19(A)(1), (2), (4) AND
 (6) OF THE ORDER BY
 
    A.) PREVENTING DR. LANGFORD (PRESIDENT OF COMPLAINANT AFGE LOCAL
 3631) FROM IMPLEMENTING
 
    HIS POSITION DESCRIPTION AT LEAST SINCE NOVEMBER 2, 1976 AND
 CONTINUING TO DATE;
 
    B.) REFUSING TO PROVIDE INFORMATION ON THE REPORT AND RECOMMENDATIONS
 OF NOVEMBER 1-5, 1976
 
    PERSONNEL MANAGEMENT EVALUATION TEAM VISIT TO EPA, REGION III, AS
 REQUESTED BY AFGE LOCAL 3631
 
    ON NOVEMBER 3, 1976 AND ENSUING DATES;
 
    C.) CHANGING PERSONNEL PRACTICES IN REGION III AS A RESULT OF THE
 NOVEMBER 1-5, 1976
 
    PERSONNEL MANAGEMENT EVALUATION TEAM VISIT AND FAILING TO AFFORD AFGE
 LOCAL 3631 AN
 
    OPPORTUNITY TO CONSULT AND CONFER ON THESE CHANGES PRIOR TO THEIR
 IMPLEMENTATION;
 
    D.) ENGAGING IN DILATORY AND EVASIVE TACTICS IN THE NEGOTIATIONS OF A
 DUES WITHHOLDING
 
    AGREEMENT.
 
    AT A THREE-DAY HEARING BEFORE ME, EXTENSIVE TESTIMONY WAS TAKEN AND
 EXHIBITS INTRODUCED ON ALL FOUR OF THE ABOVE ISSUES, AS WELL AS ON OTHER
 ISSUES INVOLVED IN A RELATED UNFAIR LABOR PRACTICE PROCEEDING WITH WHICH
 THIS CASE WAS TRIED.  SUBSEQUENTLY, THE PARTIES AGREED UPON A
 COMMENDABLE SETTLEMENT OF THEIR CONTROVERSY PURSUANT TO WHICH THE
 ISSUES
 DESIGNATED (B), (C) AND (D) ABOVE AND ALL THE ISSUES OF THE OTHER
 PROCEEDING HAVE BEEN WITHDRAWN.  THUS THE SOLE QUESTION REMAINING FOR
 DETERMINATION HEREIN IS (A) - WHETHER DR. LANGFORD HAS BEEN PREVENTED
 FROM IMPLEMENTING HIS POSITION DESCRIPTION IN VIOLATION OF THE ORDER.
 
                             FINDINGS OF FACT
 
    SINCE MAY, 1976, DR. DAVID LANGFORD HAS BEEN THE PRESIDENT OF AFGE,
 LOCAL 3631, WHICH HAS BEEN THE EXCLUSIVE BARGAINING REPRESENTATIVE OF
 NON-PROFESSIONAL EMPLOYEES AT EPA REGION III FROM JULY 1976 TO DATE.
 PRIOR TO AND CONTEMPORANEOUSLY WITH THE FILING OF THE CHARGE HEREIN, DR.
 LANGFORD PROSECUTED GRIEVANCES AND ACTIVELY PARTICIPATED IN UNFAIR LABOR
 PRACTICE PROCEEDINGS FOR THE UNION.
 
    AT ALL TIMES GERMANE TO THE ISSUE, DR. LANGFORD WAS EMPLOYED BY
 E.P.A., REGION III AS AN ENVIRONMENTAL ENGINEER (NOISE), OFFICIALLY
 DESIGNATED AS A GS-12 SENIOR SPECIALIST.  PERTINENT EXCERPTS FROM HIS
 POSITION DESCRIPTION CERTIFIED DECEMBER 17, 1975 (COMPLAINANT'S EXHIBIT
 17) ARE AS FOLLOWS:
 
    THE PURPOSE OF THIS POSITION IS TO SERVE AS REGIONAL PROGRAM
 SPECIALIST
 
    (NOISE);  RESPONSIBLE TO THE CHIEF, HAZARDOUS MATERIALS BRANCH FOR
 HELPING TO DEVELOP AND
 
    IMPLEMENT NOISE PROGRAM STRATEGIES, WORK PLAN PRIORITIES AND BUDGET
 PROVISIONS BASED UPON
 
    GUIDANCE RECEIVED FROM EPA HEADQUARTERS.  BASED UPON FEDERAL AND
 REGIONAL GUIDANCE, AND WITH
 
    DIRECTION FROM CHIEF, HAZARDOUS MATERIALS BRANCH, THE INCUMBENT WILL
 IMPLEMENT THE REGIONAL
 
    NOISE PROGRAM PLAN BY WORKING WITH STATE AND LOCAL GOVERNMENT AGENCY
 OFFICIALS.
 
    THE KNOWLEDGE (QUALIFICATION) REQUIRED BY THE JOB INCLUDES:
 
    1.  A THOROUGH COMPREHENSIVE TECHNICAL KNOWLEDGE OF THE PRINCIPLES OF
 SOUND GENERATION AND
 
    PROPAGATION;  THE PSYCHOLOGICAL IMPACT OF NOISE ON PUBLIC HEALTH AND
 WELFARE.
 
    2.  THE STATE-OF-THE-ART KNOWLEDGE IN NOISE CONTROL TECHNOLOGY AND
 THE FEDERAL/STATE/LOCAL
 
    STANDARDS AND PROGRAMS IN NOISE ABATEMENT.
 
    3.  A TECHNICAL KNOWLEDGE OF THE PRINCIPLES OF RADIATION AS THEY
 AFFECT THE ENVIRONMENT AND
 
    PUBLIC HEALTH.
 
   *          *          *          *
 
 
    1.  PROGRAM PLANNING:
 
    THE INCUMBENT IN THIS POSITION, WORKING CLOSELY WITH THE CHIEF,
 HAZARDOUS MATERIALS BRANCH
 
    PROVIDES TECHNICAL INPUTS THAT ARE NECESSARY TO DEVELOP VIABLE
 REGIONAL PROGRAM PLANS.  THE
 
    INCUMBENT WILL COORDINATE WITH OTHER REGIONAL OFFICE DIVISIONS AND
 OFFICES WHERE THERE OCCURS
 
    AN OVERLAP OF RESPONSIBILITY.
 
   *          *          *          *
 
 
    2.  PROGRAM EVALUATION:
 
    EVALUATES ENVIRONMENTAL IMPACT STATEMENTS WHERE NOISE IS CONSIDERED A
 FACTOR.  EVALUATES
 
    WHETHER NOISE POLLUTION WILL BE ADEQUATELY CONTROLLED DURING THE
 OPERATION OF PROPOSED
 
    HIGHWAY, RAILWAYS, AIRPORTS, PORT DEVELOPMENT, ETC.
 
   *          *          *          *
 
 
    PROGRAM ANALYSIS:
 
    INSPECTS, EVALUATES AND MONITORS FEDERAL FACILITIES IN CONJUNCTION
 WITH THE FEDERAL
 
    FACILITIES SECTION, TO ASCERTAIN WHETHER FEDERAL, STATE AND LOCAL
 NOISE REQUIREMENTS HAVE BEEN
 
    VIOLATED.  RECOMMENDATIONS ARE MADE TO ALLEVIATE ANY VIOLATION THAT
 MAY BE UNCOVERED.
 
    ANALYSES CITIZENS' COMPLAINTS TO DETERMINE WHETHER FEDERAL
 REGULATIONS ARE BEING VIOLATED
 
    AND RECOMMENDS WHAT REMEDIAL ACTION MAY BE TAKEN TO REDUCE OR
 ALLEVIATE COMPLAINTS.  ALSO
 
    DETERMINES THE EFFECTIVENESS FEDERAL NOISE ABATEMENT PROGRAMS HAVE.
 
    CONDUCTS ENVIRONMENTAL NOISE MONITORING PROGRAMS TO ESTABLISH
 BASELINE NOISE
 
    CHARACTERISTICS WITHIN THE REGION;  THESE PROGRAMS ALSO OBTAIN TREND
 DATA.
 
   *          *          *          *
 
 
    4.  PROGRAM DEVELOPMENT:
 
    DEVELOPS A PUBLIC AWARENESS TO ENVIRONMENTAL NOISE THROUGH SPECIAL
 DEMONSTRATION AND
 
    EDUCATIONAL PROJECTS.  THESE INCLUDE SPEAKING ENGAGEMENTS TO CIVIC
 AND EDUCATIONAL
 
    ORGANIZATIONS, AND THE DEVELOPMENT AND IMPLEMENTATION OF NOISE
 ORIENTED SEMINARS AND
 
    WORKSHOPS.  RELATING TO THE SEMINARS AND WORKSHOPS, THE INCUMBENT
 DETERMINES THE DESIRED
 
    TARGET AUDIENCE, DEVELOPS THE AGENDA, ESTABLISHES SCHEDULES, AND
 OBTAINS NECESSARY MATERIALS
 
    AND SPEAKERS.
 
   *          *          *          *
 
 
    5.  PROGRAM ADMINISTRATION:
 
    PROVIDES RESPONSES TO PUBLIC INQUIRIES FOR INFORMATION AND ADVISES ON
 ENVIRONMENTAL NOISE.
 
   *          *          *          *
 
 
    6.  PROGRAM COORDINATION:
 
    COORDINATES WITH OTHER FEDERAL AGENCIES (WITHIN THE REGION) TO INSURE
 THAT THE INTENT OF
 
    THE NOISE CONTROL ACT OF 1972 IS BEING IMPLEMENTED.
 
    INTERFACES WITH HEADQUARTERS, OFFICE OF NOISE ABATEMENT AND CONTROL
 REGARDING THE
 
    DEVELOPMENT AND IMPLEMENTATION OF NOISE PROGRAM PLANS.  POLICY, AND
 REQUIRED ACHIEVEMENT
 
    MANDATED BY THE NOISE CONTROL ACT OF 1972.
 
    PARTICIPATES IN SEMINARS, HEARINGS, ETC., AS ASSIGNED BY THE CHIEF,
 HAZARDOUS MATERIALS
 
    BRANCH, AS THE EPA REGIONAL NOISE REPRESENTATIVE.
 
    7.  PROGRAM FORECASTING:
 
    PROVIDES TO STATE AND LOCAL GOVERNMENT AGENCIES THE EXPECTED IMPACT
 OF THE NEW OR SOON TO
 
    BE PROMULGATED REGULATIONS PURSUANT TO THE NOISE CONTROL ACT OF 1972,
 E.G., THE IMPACT OF
 
    INTERSTATE MOTOR CARRIER NOISE STANDARDS ON STATE RESOURCE
 REQUIREMENTS, NEW PRODUCT
 
    REGULATIONS, ENFORCEMENT OF ENABLING LEGISLATION, ETC.
 
    8.  PROGRAM ASSISTANCE:
 
    PROVIDES TECHNICAL ASSISTANCE TO STATES AND LOCAL GOVERNMENTS IN THE
 DEVELOPMENT AND
 
    IMPLEMENTATION OF NOISE CONTROL PROGRAMS, INCLUDING PREPARATION OF
 ORDINANCES, SURVEY NEEDS
 
    AND ENFORCEMENT TECHNIQUES.
 
   *          *          *          *
 
 
    9.  ADDITIONAL DUTIES:
 
    PROVIDES ASSISTANCE, AS DIRECTED BY THE CHIEF, HAZARDOUS MATERIALS
 BRANCH TO THE REGIONAL
 
    RADIATION REPRESENTATIVE IN SPECIAL ACTIVITIES OF THE REGION'S
 RADIATION PROGRAM.  EXAMPLES OF
 
    SUCH ASSISTANCE ARE:  (1) SUPPORT IN TECHNICAL REVIEW OF EIS FOR
 FIXED NUCLEAR FACILITIES, (2)
 
    TECHNICAL ASSISTANCE TO STATE AND LOCAL AGENCIES AND (3) WORKSHOP
 DEVELOPMENT AND
 
    IMPLEMENTATION.
 
    DUTIES LISTED ABOVE SHALL NOT CONSUME IN EXCESS OF 25% OF THE TOTAL
 WORK EFFORT FOR THIS
 
    POSITION.
 
    DR. LANGSFORD'D BACKGROUND IS IN THE FIELD OF RADIATION, BUT
 FOLLOWING A REDUCTION-IN-FORCE IN OR ABOUT FEBRUARY 1975, HE ENTERED
 UPON EMPLOYMENT IN THE NOISE AREA.  HIS FORMAL TRAINING IN THE LATTER IS
 LIMITED TO A ONE-WEEK NOISE COURSE AND ANOTHER ONE-WEEK COURSE IN
 ENVIRONMENTAL IMPACT STATEMENTS.  IN ADDITION, HE RECEIVED SOME INFORMAL
 ON-THE-JOB TRAINING.  HIS PERFORMANCE EVALUATIONS WERE HIGH.
 
    MR. PATRICK ANDERSON IS ALSO EMPLOYED AT REGION III AS AN
 ENVIRONMENTAL ENGINEER (NOISE), GRADE GS-12, HIS ORGANIZATIONAL JOB
 TITLE BEING REGIONAL NOISE REPRESENTATIVE.  HIS POSITION DESCRIPTION IS
 VIRTUALLY THE SAME AS DR. LANGFORD'S, BUT WITHOUT ANY REFERENCE TO
 RADIATION.  HIS BACKGROUND AND EXPERIENCE IN THE FIELD OF NOISE IS
 SIGNIFICANTLY GREATER THAN DR.  LANGFORD'S AND HE IS SENIOR TO DR.
 LANGFORD IN POINT OF SERVICE IN THE REGION III NOISE UNIT.
 
    IN WORK ASSIGNMENTS, JOBS THAT NEEDED CONSIDERABLE TECHNICAL
 EXPERTISE WERE USUALLY GIVEN TO MR. ANDERSON, WHILE THOSE REQUIRING MORE
 GENERALIZED KNOWLEDGE OF THE FIELD WERE GIVEN TO DR. LANGFORD.  IN THE
 AREA OF PUBLIC OR ORGANIZATIONAL ACTIVITIES, SUCH AS REGIONAL NOISE
 CONFERENCES, SPEAKING ENGAGEMENTS TO CIVIC AND EDUCATIONAL GROUPS,
 PARTICIPATION IN SEMINARS, WORKSHOPS AND PANEL DISCUSSIONS, MR. ANDERSON
 WAS ALMOST INVARIABLY SELECTED FOR SUCH DUTY TO THE EXCLUSION OF DR.
 LANGFORD.  IN MANY INSTANCES, MR. ANDERSON, WHO HAD ESTABLISHED
 SOMETHING OF A REPUTATION IN NOISE CIRCLES, WAS REQUESTED TO ATTEND BY
 THE SPONSORING ORGANIZATIONS.  DR. LANGFORD WAS AFFORDED LITTLE
 OPPORTUNITY TO BECOME WELL-KNOWN IN THE FIELD.
 
                            CONCLUSIONS OF LAW
 
    ESSENTIALLY, ALL OF THE EVIDENCE ADDUCED EVINCES A PATTERN AND
 PRACTICE OF PREFERRING ONE EMPLOYEE OVER ANOTHER WITH RESPECT TO CERTAIN
 WORK ASSIGNMENTS AND CERTAIN EXTERNAL FUNCTIONS.  WHETHER SUCH
 PREFERENCE BETWEEN TWO EMPLOYEES HAVING THE SUBSTANTIALLY THE SAME
 POSITION DESCRIPTION AMOUNTS TO UNLAWFUL DISCRIMINATION OR OTHER
 VIOLATION OF THE ORDER REMAINS TO BE DETERMINED.
 
    BEARING IN MIND THAT RESPONDENTS RESERVE THE RIGHT TO DIRECT
 EMPLOYEES OF THE AGENCY AND TO DETERMINE THE METHODS, MEANS, AND
 PERSONNEL BY WHICH OPERATIONS ARE TO BE CONDUCTED (SEE ORDER SEC.
 12(B)), DR. LANGFORD'S SUPERVISORS WERE UNDER NO OBLIGATION TO ASSIGN
 HIM TO THE SAME "OUTSIDE" ACTIVITIES AS THEY ASSIGNED MR. ANDERSON.
 EVEN IF WE ASSUME THAT THE EVIDENCE DEMONSTRATES THEIR CURTAILMENT OF
 HIS PERFORMANCE OF SOME OF THE DUTIES REFERRED TO IN ITEMS 4 AND 6 OF
 HIS POSITION DESCRIPTION ABOVE DESCRIBED, COMPLAINANT HAS THE BURDEN OF
 PROVING THAT THEY EXERCISED AN APPARENT RIGHT FOR A PROSCRIBED REASON OR
 WITH AN ULTERIOR MOTIVE.  LET US CONSIDER THEN THE ACTS OR OMISSIONS
 COMPLAINED OF IN THE LIGHT OF EACH OF THE PROVISIONS OF SECTION 19(A)
 RELIED ON.
 
    UNDER SECTION 19(A)(1), COMPLAINANT CHARGES INTERFERENCE WITH,
 RESTRAINT OR COERCION OF DR. LANGFORD IN THE EXERCISE OF THE RIGHTS
 ASSURED BY THE ORDER.  BUT WHAT IS SOUGHT TO BE SECURED IN THIS
 PROCEEDING IS A RIGHT TO EQUAL PARTICIPATION IN THE PUBLIC RELATIONS
 ASPECTS OF A JOB (IRRESPECTIVE OF ANY TALENT THEREFOR), TO ENJOY THE
 TRAVEL AND KUDOS ASSOCIATED WITH REPRESENTING EPA IN REGIONAL AND
 COMMUNITY AFFAIRS, AND TO ACQUIRE PERSONAL RECOGNITION IN A SPECIALIZED
 FIELD.  NONE OF SUCH "RIGHTS" ARE ASSURED BY THE ORDER (OR EVEN BY THE
 POSITION DESCRIPTION, FOR THAT MATTER).  CONSEQUENTLY, NO VIOLATION OF
 SECTION 19(A)(1) IS ESTABLISHED, UNLESS IT BE SHOWN DERIVATIVELY THROUGH
 VIOLATION OF ANOTHER PROVISION.
 
    IF THE SELECTION OF DR. ANDERSON FOR THE AFOREMENTIONED
 ORGANIZATIONAL AND COMMUNITY ACTIVITIES BE REGARDED AS DISCRIMINATORY
 VIS-A-VIS DR. LANGFORD, THE QUESTION IS WHETHER SUCH DISCRIMINATION IN
 CONDITIONS OF EMPLOYMENT WAS INTENDED TO, OR WAS LIKELY TO, DISCOURAGE
 MEMBERSHIP IN A LABOR ORGANIZATION WITHIN THE MEANING OF SECTION
 19(A)(2).  NOT ONLY IS THERE NO EVIDENCE OF SO-CALLED "ANTI-UNION
 ANIMUS", BUT THERE IS AFFIRMATIVE EVIDENCE OF VALID REASONS FOR THE
 SELECTION OF MR. ANDERSON.  IT IS DECIDEDLY MORE REASONABLE TO DRAW THE
 INFERENCE THAT MR. ANDERSON WAS CHOSEN BECAUSE OF EXPERIENCE,
 REPUTATION, SENIORITY AND PERSONAL SUITABILITY THAN TO INFER THAT DR.
 LANGFORD WAS REJECTED BECAUSE OF HIS UNION ACTIVISM.  IT IS APPARENT
 THAT FAVORITISM PLAYED A PART IN THE SELECTION, WHICH MAY BE POOR
 PERSONNEL PRACTICE, BUT IT DOES NOT AMOUNT TO A 19(A)(2) OFFENSE.
 
    SIMILARLY, THE FACT THAT DR. LANGFORD HAD FILED A NUMBER OF
 COMPLAINTS UNDER THE ORDER AND HAD ACTIVELY PARTICIPATED IN OTHER UNFAIR
 LABOR PRACTICE PROCEEDINGS AGAINST RESPONDENT DOES NOT OF ITSELF
 ESTABLISH DISCRIMINATION UNDER SECTION 19(A)(4).  THE EVIDENCE FAILS TO
 SHOW THAT MR. ANDERSON'S NEARLY EXCLUSIVE PUBLIC REPRESENTATION OF
 REGION III, BEGUN LONG BEFORE DR. LANGFORD'S PARTICIPATION IN ULP
 PROCEEDINGS, AND THE RESULTANT DENIAL OF ITS PRIVILEGES AND PERQUISITES
 TO DR. LANGFORD, WERE IN REPRISAL FOR THE LATTER'S VIGOROUS PROTECTION
 OF HIS RIGHTS, AND THOSE OF OTHER EMPLOYEES, UNDER THE ORDER.
 
    WITH RESPECT TO SECTION 19(A)(6), THERE IS NO EVIDENCE OF REFUSAL TO
 CONSULT, CONFER OR NEGOTIATE WITH A LABOR ORGANIZATION ON THE ISSUE AT
 HAND, TO WIT, DR. LANGFORD'S IMPLEMENTATION OF HIS POSITION DESCRIPTION.
  THOUGH DR. LANGFORD INDIVIDUALLY REQUESTED CERTAIN ASSIGNMENTS AND
 SOUGHT TO DISCUSS HIS FAILURE TO RECEIVE THEM, THE PROOF DOES NOT
 INDICATE ANY REQUEST BY LOCAL 3631 TO CONSULT, CONFER OR NEGOTIATE ON
 THAT SPECIFIC SUBJECT PRIOR TO THE FILING OF THE CHARGE HEREIN.
 MOREOVER, EVEN IF SUCH REQUEST WERE MADE, IT IS EXCEEDINGLY DOUBTFUL
 THAT ANY CONSULTATION, CONFERENCE OR NEGOTIATION WITH A UNION IS
 REQUIRED ON A WORK-SELECTIVITY PROBLEM IN THE ABSENCE OF VIOLATION OF
 OTHER PROVISIONS OF THE ORDER.
 
    UNDER-UTILIZATION, EVEN IF ACTIONABLE PER SE, HAS NOT BEEN
 ESTABLISHED, SINCE IT HAS NOT BEEN DEMONSTRATED THAT DR. LANGFORD HAS
 THE REQUISITE SKILL IN THE SPECIFIC ACTIVITY IN WHICH HE WAS GIVEN
 LITTLE OR NO CHANCE TO ENGAGE.  WHAT HE REALLY COMPLAINS OF IS LACK OF
 OPPORTUNITY FOR CAREER DEVELOPMENT, BUT THAT IS AN AREA CLEARLY OUTSIDE
 THE PROVINCE OF THESE PROCEEDINGS, PRESENTING QUESTIONS STILL TO BE
 ANSWERED BY THE SUPREME COURT UNDER TITLE VII.
 
    ALL IN ALL, I FIND THAT COMPLAINANT HAS NOT SUSTAINED ITS BURDEN OF
 PROVING BY A PREPONDERANCE OF THE EVIDENCE THAT RESPONDENTS PREVENTED
 DR. LANGFORD FROM IMPLEMENTING HIS POSITION DESCRIPTION IN VIOLATION OF
 THE ORDER.
 
                              RECOMMENDATION
 
    IN VIEW OF THE FOREGOING, I RECOMMEND THAT THE COMPLAINT HEREIN BE
 DISMISSED.
 
                             ROBERT J. FELDMAN
 
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  JUNE 12, 1979
 
    WASHINGTON, D.C.
 
    /1/ 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 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