Directorate of Supply Operations, Defense Logistics Agency, Headquarters, Defense Logistics Agency (Respondent) and Louis J. Derdevanis (Complainant) 

 



[ 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