United States Air Force, Dyess Air Force Base, Texas Abilene, TX (Respondent) and American Federation of Government Employees, Local 2356, AFL-CIO (Complainant)



[ v03 p809 ]
03:0809(122)CA
The decision of the Authority follows:


 3 FLRA No. 122
 
 UNITED STATES AIR FORCE
 DYESS AIR FORCE BASE, TEXAS
 ABILENE, TEXAS
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, AFL-CIO, LOCAL 2356
 Complainant
 
                                            Case No. 6-CA-117
 
                            DECISION AND ORDER
 
    THE ADMINISTRATIVE LAW JUDGE ISSUED HIS RECOMMENDED DECISION AND
 ORDER IN THE ABOVE-ENTITLED PROCEEDING, FINDING THAT THE RESPONDENT HAD
 ENGAGED IN THE UNFAIR LABOR PRACTICE ALLEGED IN THE COMPLAINT AND
 RECOMMENDING IT CEASE AND DESIST THEREFROM AND TAKE CERTAIN AFFIRMATIVE
 ACTIONS AS SET FORTH IN THE ATTACHED ADMINISTRATIVE LAW JUDGE'S
 RECOMMENDED DECISION AND ORDER.  THE RESPONDENT FILED EXCEPTIONS TO THE
 ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER AND THE
 GENERAL COUNSEL FILED A RESPONSE TO THE RESPONDENT'S EXCEPTIONS.
 
    THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR
 LABOR-MANAGEMENT RELATIONS, UNDER EXECUTIVE ORDER 11491, AS AMENDED,
 WERE TRANSFERRED TO THE AUTHORITY UNDER SECTION 304 OF REORGANIZATION
 PLAN NO. 2 OF 1978 (43 F.R. 36040), WHICH TRANSFER OF FUNCTIONS IS
 IMPLEMENTED BY SECTION 2400.2 OF THE AUTHORITY'S RULES AND REGULATIONS
 (5 CFR 2400.2).  THE AUTHORITY CONTINUES TO BE RESPONSIBLE FOR THE
 PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN SECTION 7135(B) OF THE
 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1215).
 
    THEREFORE, PURSUANT TO SECTION 2400.2 OF THE AUTHORITY'S RULES AND
 REGULATIONS AND SECTION 7135(B) OF THE STATUTE, THE AUTHORITY HAS
 REVIEWED THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE HEARING
 AND FINDS NO PREJUDICIAL ERROR WAS COMMITTED.  THE RULINGS ARE HEREBY
 AFFIRMED.  UPON CONSIDERATION OF THE ADMINISTRATIVE LAW JUDGE'S
 RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THE SUBJECT
 CASE, INCLUDING THE RESPONDENT'S EXCEPTIONS, AND THE GENERAL COUNSEL'S
 RESPONSE THERETO, THE AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW
 JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATION EXCEPT AS MODIFIED
 HEREIN.
 
    THE ADMINISTRATIVE LAW JUDGE FOUND THAT THE RESPONDENT VIOLATED
 SECTION 19(A)(2) AND (1) OF THE EXECUTIVE ORDER 11491, AS AMENDED, BY
 REFUSING TO REHIRE MRS. PATRICIA C. CARROLL BECAUSE OF HER ACTIVITY AS A
 UNION STEWARD FOR THE COMPLAINANT, LOCAL 2356, AFGE.  AS A REMEDY THE
 ADMINISTRATIVE LAW JUDGE RECOMMENDED, AMONG OTHER THINGS, THAT THE
 RESPONDENT OFFER PATRICIA C. CARROLL EMPLOYMENT AS A SALES STORE
 CHECKER, GS-3 INTERMITTENT, OR IF THAT JOB NO LONGER EXISTS, IN A
 SUBSTANTIALLY SIMILAR POSITION, AND MAKE HER WHOLE BY THE PAYMENT OF
 THAT SUM OF MONEY WHICH SHE WOULD HAVE EARNED BETWEEN THE DATE OF
 DISCRIMINATORY FAILURE TO HIRE AND THE DATE OF OFFER OF EMPLOYMENT, LESS
 ANY AMOUNTS EARNED ELSEWHERE DURING THAT PERIOD OF TIME.
 
    THE COMPTROLLER GENERAL HAS PREVIOUSLY DECIDED, IN MATTERS ARISING
 UNDER EXECUTIVE ORDER 11491, AS AMENDED, THAT IN CASES OF AGENCY
 DISCRIMINATION IN HIRING, THE BACK PAY ACT OF 1966, 5 U.S.C. 5596(1970)
 "IS APPOSITE ONLY TO FEDERAL EMPLOYEES AND DOES NOT PROVIDE A REMEDY FOR
 UNSUCCESSFUL APPLICANTS FOR FEDERAL EMPLOYMENT." SEE DECISION NO.
 B-180010, 54 COMP.GEN. 760, 763 (MARCH 19, 1975).  THE COMPTROLLER
 GENERAL FURTHER INDICATED THAT, IN HIS OPINION, THE ASSISTANT SECRETARY
 OF LABOR FOR LABOR-MANAGEMENT RELATIONS "MAY NOT DIRECT AN APPLICANT'S
 APPOINTMENT (TO A CIVIL SERVICE POSITION) EVEN THOUGH HE IS AUTHORIZED
 TO TAKE AFFIRMATIVE ACTION IN CASES INVOLVING DISCRIMINATION IN HIRING
 AS A RESULT OF AN UNFAIR LABOR PRACTICE." IN SO CONCLUDING, HE NOTED
 THAT "THE AUTHORITY TO APPOINT IS IN THE ADMINISTRATIVE AGENCIES UNDER
 REGULATIONS ISSUED BY THE CIVIL SERVICE COMMISSION (NOW THE OFFICE OF
 PERSONNEL MANAGEMENT)." ID. AT 763-764.  SEE ALSO FEDERAL EMPLOYEES
 METAL TRADES COUNCIL AND MARE ISLAND NAVAL SHIPYARD, 3 FLRA NO. 90,
 WHEREIN THE AUTHORITY, BASED UPON AN INTERPRETATION BY OPM, SET ASIDE AS
 VIOLATIVE OF APPLICABLE LAW, CIVIL SERVICE REGULATIONS AND INSTRUCTIONS,
 AN ARBITRATOR'S AWARD REQUIRING A GRIEVANT TO BE RETROACTIVELY APPOINTED
 TO A CAREER POSITION WITH BACK PAY.  IN VIEW OF THE FOREGOING, THE
 AUTHORITY IS CONSTRAINED TO CONCLUDE THAT THE REMEDIAL ORDER RECOMMENDED
 BY THE ADMINISTRATIVE LAW JUDGE MUST BE MODIFIED AS SET FORTH BELOW.
 /1A/
 
                                   ORDER
 
    PURSUANT TO SECTION 2400.2 OF THE RULES AND REGULATIONS OF THE
 FEDERAL LABOR RELATIONS AUTHORITY AND SECTION 7135 OF THE FEDERAL
 SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, THE AUTHORITY HEREBY ORDERS
 THAT THE DEPARTMENT OF THE AIR FORCE, DYESS AIR FORCE BASE, ABILENE,
 TEXAS, SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) REFUSING TO EMPLOY PATRICIA CARROLL, OR ANY OTHER APPLICANT,
 BECAUSE OF MEMBERSHIP IN, OR ACTIVITY IN BEHALF OF, LOCAL 2356, AMERICAN
 FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO.
 
    (B) DISCOURAGING MEMBERSHIP IN LOCAL 2356, AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO, OR ANY OTHER LABOR ORGANIZATION, BY
 DISCRIMINATION IN RESPECT TO ANY TERM OR CONDITION OF EMPLOYMENT, BASED
 UPON CONSIDERATIONS OF UNION MEMBERSHIP.
 
    (C) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING OR
 COERCING EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED BY EXECUTIVE ORDER
 11491, AS AMENDED.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
 PURPOSE AND POLICIES OF EXECUTIVE ORDER 11491, AS AMENDED.
 
    (A) GIVE FIRST CONSIDERATION TO PATRICIA CARROLL, IN FILLING ANY
 POSITION FOR WHICH SHE MAY BE QUALIFIED, INCLUDING BUT NOT LIMITED TO
 THE POSITION OF SALES STORE CHECKER, GS-3 INTERMITTENT, WITHOUT REGARD
 TO HER UNION ACTIVITY ON BEHALF OF LOCAL 2356, AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO, OR ANY OTHER LABOR ORGANIZATION.
 
    (B) POST AT ITS ABILENE, TEXAS, FACILITY, COPIES OF THE ATTACHED
 NOTICE MARKED "APPENDIX" ON FORMS TO BE FURNISHED BY THE FEDERAL LABOR
 RELATIONS AUTHORITY.  UPON RECEIPT OF SUCH FORMS, THEY SHALL BE SIGNED
 BY THE BASE COMMANDER AND SHALL BE POSTED AND MAINTAINED BY HIM FOR 60
 CONSECUTIVE DAYS THEREAFTER IN CONSPICUOUS PLACES, INCLUDING ALL PLACES
 WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED.  THE BASE COMMANDER
 SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED,
 DEFACED OR COVERED BY ANY OTHER MATERIAL.
 
    (C) NOTIFY THE FEDERAL LABOR RELATIONS AUTHORITY, IN WRITING, WITHIN
 30 DAYS FROM THE DATE OF THIS ORDER, AS TO WHAT STEPS HAVE BEEN TAKEN TO
 COMPLY HEREWITH.
 
    ISSUED, WASHINGTON, D.C., JULY 31, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
                                 APPENDIX
 
                          NOTICE TO ALL EMPLOYEES
 
                                PURSUANT TO
 
                        A DECISION AND ORDER OF THE
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
                AND IN ORDER TO EFFECTUATE THE POLICIES OF
 
                       CHAPTER 71 OF TITLE 5 OF THE
 
                            UNITED STATES CODE
 
                FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 
                   WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT REFUSE TO EMPLOY PATRICIA CARROLL, OR ANY OTHER
 APPLICANT, BECAUSE OF MEMBERSHIP IN, OR ACTIVITY ON BEHALF OF, LOCAL
 2356, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO.
 
    WE WILL NOT DISCOURAGE MEMBERSHIP IN LOCAL 2356, AMERICAN FEDERATION
 OF GOVERNMENT EMPLOYEES, AFL-CIO, OR ANY OTHER LABOR ORGANIZATION, BY
 DISCRIMINATION IN RESPECT TO ANY TERM OR CONDITION OF EMPLOYMENT, BASED
 UPON CONSIDERATIONS OF UNION MEMBERSHIP.
 
    WE WILL NOT IN ANY LIKE OR RELATED MANNER, INTERFERE WITH, RESTRAIN
 OR COERCE EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED BY EXECUTIVE ORDER
 11491, AS AMENDED.
 
    WE WILL GIVE FIRST CONSIDERATION TO PATRICIA CARROLL, IN FILLING ANY
 POSITION FOR WHICH SHE MAY BE QUALIFIED, INCLUDING BUT NOT LIMITED TO
 THE POSITION OF SALES STORE CHECKER, GS-3 INTERMITTENT, WITHOUT REGARD
 TO HER UNION ACTIVITY ON BEHALF OF LOCAL 2356, AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO, OR ANY OTHER LABOR ORGANIZATION.
 
                      UNITED STATES AIR FORCE, DYESS
 
                   AIR FORCE BASE, TEXAS, ABILENE, TEXAS
 
    DATED:  BY:  (BASE COMMANDER)
 
    THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
 OF POSTING, AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
 MATERIAL.
 
    IF EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE
 WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
 REGIONAL DIRECTOR FOR THE FEDERAL LABOR RELATIONS AUTHORITY, WHOSE
 ADDRESS IS:  BRYAN & ERVAY STREET, OLD POST OFFICE BUILDING, ROOM 450,
 DALLAS, TEXAS 75221.
 
                          CERTIFICATE OF SERVICE
 
    COPIES OF THE DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS
 AUTHORITY IN THE SUBJECT PROCEEDING HAVE THIS DAY BEEN MAILED TO THE
 PARTIES LISTED BELOW:
 
    STEVEN M. ANGEL, ESQ.
 
    FEDERAL LABOR RELATIONS AUTHORITY
 
    BRYAN & ERVAY STREET
 
    OLD POST OFFICE BUILDING
 
    ROOM 450
 
    DALLAS, TEXAS 75221
 
    JERRY M. BRASEL
 
    CENTRAL LABOR LAW OFFICE
 
    RANDOLPH AIR FORCE BASE, TEXAS 78148
 
    MILTON COLIA
 
    96TH CSG/JA
 
    DYESS AIR FORCE BASE, TEXAS 79607
 
    PETER EVANS
 
    NATIONAL REPRESENTATIVE, 10TH DISTRICT
 
    AMERICAN FEDERATION OF GOVERNMENT
 
    EMPLOYEES, AFL-CIO
 
    203 TIMOTHY TRAIL
 
    DUNCANVILLE, TEXAS 75116
 
    MR. KENNETH T. BLAYLOCK, PRESIDENT
 
    AMERICAN FEDERATION OF GOVERNMENT
 
    EMPLOYEES, AFL-CIO
 
    1325 MASSACHUSETTS AVENUE, N.W.
 
    WASHINGTON, D. C.  20005
 
    MR. GABRIEL PERALES, JR.
 
    REGIONAL DIRECTOR
 
    FEDERAL LABOR RELATIONS AUTHORITY
 
    DOWNTOWN POST OFFICE STATION
 
    BRYAN AND ERVAY STREETS
 
    P. O. BOX 2640
 
    DALLAS, TEXAS 75202
 
    /1A/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM
 ACT OF 1978 (92 STAT. 1224), THE PRESENT CASE IS DECIDED SOLELY ON THE
 BASIS OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
  THE DECISION AND ORDER DOES NOT PREJUDGE IN ANY MANNER WITHER THE
 MEANING OR APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR THE
 RESULT WHICH WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN
 UNDER THE STATUTE RATHER THAN THE EXECUTIVE ORDER.
 
    STEVEN M. ANGEL, ESQUIRE
 
    FEDERAL LABOR RELATIONS AUTHORITY
 
    REGION VI
 
    BRYAN & ERVAY STREET
 
    OLD POST OFFICE BUILDING
 
    ROOM 450
 
    DALLAS, TX 75221
 
                          FOR THE GENERAL COUNSEL
 
    JERRY M. BRASEL
 
    CENTRAL LABOR LAW OFFICE
 
    RANDOLPH AIR FORCE BASE, TX 78148
 
                            FOR THE RESPONDENT
 
    MILTON COLIA
 
    96TH CSG/JA
 
    DYESS AIR FORCE BASE, TX 79607
 
                            FOR THE RESPONDENT
 
    PETE EVANS
 
    NATIONAL REPRESENTATIVE, 10TH DISTRICT
 
    AMERICAN FEDERATION OF GOVERNMENT
 
    EMPLOYEES, AFL-CIO
 
    203 TIMOTHY TRAIL
 
    DUNCANVILLE, TX 75116
 
                          FOR THE CHARGING PARTY
 
    BEFORE:  JOHN H. FENTON
 
                         ADMINISTRATIVE LAW JUDGE
 
                            DECISION AND ORDER
 
                           STATEMENT OF THE CASE
 
    THIS IS A PROCEEDING PURSUANT TO THE FEDERAL LABOR-MANAGEMENT
 RELATIONS STATUTE, 92 STAT. 1191, 5 U.S.C. SECTION 7101 ET SEQ., WHICH
 AROSE UPON A COMPLAINT FILED ON AUGUST 20, 1979 BY THE REGIONAL
 DIRECTOR, REGION 6, FEDERAL LABOR RELATIONS AUTHORITY, AGAINST THE
 DEPARTMENT OF THE AIR FORCE, DYESS AIR FORCE BASE, ABILENE, TEXAS.  THE
 COMPLAINT ALLEGED THAT RESPONDENT VIOLATED SECTION 19(A)(2) AND (1) OF
 THE EXECUTIVE ORDER 11491 ON DECEMBER 13, 1978, BY REFUSING TO REHIRE
 MRS. PATRICIA C. CARROLL BECAUSE OF HER ACTIVITY AS A STEWARD FOR LOCAL
 2356, AFGE.  RESPONDENT'S DEFENSE, IN SUBSTANCE, IS THAT CARROLL WAS NOT
 HIRED BECAUSE SHE HAD INDICATED AN INTENTION TO BID OUT OF THE
 COMMISSARY ON THE BASIS OF HER STATUS AS A REINSTATEMENT ELIGIBLE, AND
 THUS WOULD NOT SERVE LONG IN THE COMMISSARY;  BECAUSE SHE HAD APPLIED
 UNDUE PRESSURE IN HER EFFORT TO BE HIRED;  AND BECAUSE IT HIRED PURSUANT
 TO A SPECIAL (LOCAL) RECRUITMENT PROGRAM DESIGNED TO MEET THE
 REQUIREMENTS OF ITS EQUAL EMPLOYMENT OPPORTUNITY PROGRAM.
 
    AT THE HEARING ALL PARTIES WERE AFFORDED FULL OPPORTUNITY TO BE
 HEARD, TO EXAMINE AND CROSS-EXAMINE WITNESSES, AND TO INTRODUCE EVIDENCE
 BEARING UPON THE ISSUES.  COUNSEL FOR THE GENERAL COUNSEL AND FOR
 RESPONDENT FILED BRIEFS.  UPON THE ENTIRE RECORD, INCLUDING MY
 OBSERVATION OF THE WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING
 FINDINGS OF FACT AND CONCLUSIONS.
 
                                   FACTS
 
    1.  MRS. PATRICIA C. CARROLL FIRST WORKED AS A GS-3 CHECKER AT THE
 DYESS AIR FORCE BASE COMMISSARY FROM JULY OF 1974 TO MAY, 1976.  SHE WAS
 A VERY ACTIVE AND SUCCESSFUL UNION STEWARD FROM MARCH OF 1975 UNTIL SHE
 LEFT.  SHE DESCRIBED NINE GRIEVANCES SHE WON, INCLUDING ONE ADDRESSED TO
 PRE-SELECTION OF THE HEAD CASHIER WHICH REDOUNDED TO THE BENEFIT OF THE
 PRESENT INCUMBENT, MRS. ANNA HAMMERSMITH.  SHE ALSO COMPLAINED TO THE
 OFFICE OF SPECIAL INVESTIGATIONS ABOUT THEFTS WHICH SHE SAID HAD BEEN
 IGNORED BY MANAGEMENT.  SHE TESTIFIED THAT WHEN SHE RESIGNED, AGENTS OF
 THAT OFFICE TOLD HER TO IMMEDIATELY CONTACT THEM IN THE EVENT SHE EVER
 WAS REFUSED REEMPLOYMENT.  WHEN SHE LEFT DYESS TO ACCOMPANY HER HUSBAND
 TO ORLANDO, FLORIDA, SHE REQUESTED AND RECEIVED OUTSTANDING LETTERS OF
 RECOMMENDATION FROM HAMMERSMITH AS "VERY EFFICIENT . . . DEPENDABLE AND
 CONSCIENTIOUS," AN "OUTSTANDING" EMPLOYEE AND A "GREAT ASSET TO ANY
 ORGANIZATION." THE OTHER TWO WERE EQUALLY EFFUSIVE IN THEIR PRAISE (G.C.
 EXHIBITS 4, 15(A) AND 15(B)).
 
    2.  CARROLL WAS A CASHIER IN THE ORLANDO NAVY EXCHANGE FROM SEPTEMBER
 OF 1976 TO MAY OF 1977 AND THEN MOVED TO ARIZONA, WHERE SHE WORKED AS A
 GS-2 INTERMITTENT CHECKER IN THE COMMISSARY AT LUKE AIR FORCE BASE FOR
 APPROXIMATELY 90 DAYS ENDING IN AUGUST, 1978.  DURING THAT TIME SHE USED
 SOPHISTICATED CASH REGISTERS SIMILAR TO THOSE IN USE AT DYESS.  IN
 MID-AUGUST SHE TELEPHONE MRS. HAMMERSMITH TO INFORM HER THAT SHE WAS
 RETURNING TO ABILENE, AND TO INQUIRE ABOUT THE AVAILABILITY OF CASHIER
 JOBS AND HOUSING.  HAMMERSMITH TOLD HER THAT THEY ALWAYS NEED CASHIERS
 AND AGREED TO CALL PERSONNEL TO DETERMINE WHETHER CARROLL SHOULD
 ATTEMPT
 TO TRANSFER OR SHOULD RESIGN AND REAPPLY.  THEN OR IN THEIR NEXT
 CONVERSATION, CARROLL WAS TOLD THAT THE AVAILABLE JOBS WERE GS-3
 INTERMITTENT PART-TIME, WHICH LIMITED EMPLOYEES TO 20 HOURS PER WEEK
 WHENEVER NEEDED.
 
    3.  IN EARLY SEPTEMBER CARROLL MOVED TO ABILENE AND VISITED
 HAMMERSMITH AT WORK.  SHE WAS TOLD THAT THE VACANCIES EXISTED BUT WERE
 NOT YET BEING FILLED, AND THAT SHE SHOULD APPLY AT THE PERSONNEL
 SECTION, MAKING SURE THAT SHE INDICATED HER WILLINGNESS TO ACCEPT
 INTERMITTENT EMPLOYMENT.  AT THAT TIME SHE WAS INTRODUCED TO MR. RAY
 WHITLEY, COMMISSARY MANAGER.  HE ALSO STATED THAT CASHIERS WERE ALWAYS
 NEEDED.  IN MID-SEPTEMBER CARROLL FILED AN APPLICATION WITH PERSONNEL.
 AGAIN SHE WAS TOLD THAT THERE WERE OPENINGS BUT IT WAS NOT KNOWN WHEN
 THEY WOULD BE FILLED.  SHE PROVIDED DYESS OFFICIALS WITH A LETTER OF
 REFERENCE FROM HER SUPERVISOR AT LUKE, WHICH NOTED THAT SHE WAS HIGHLY
 TRAINED IN THE NCR 255/726 CASH REGISTER AND THAT SHE WAS NUMBER TWO IN
 AN AIR FORCE COMPETITION.  (G.C. EXHIBIT 15(C)).
 
    4.  ON OCTOBER 24, 1978, DEPARTMENT OF DEFENSE WAS PLACED UNDER A
 PRESIDENTIAL FREEZE WHICH PERMITTED IT TO REPLACE ONLY 50% OF ATTRITION.
  THIS LASTED UNTIL FEBRUARY 1979, AND INTENSIFIED "RAIDING" AMONG
 COMPONENTS OF DEPARTMENT OF DEFENSE TO ACQUIRE NEEDED PERSONNEL.
 BECAUSE OF THE RELATIVELY LOW GRADES AND INCOME OF COMMISSARY
 INTERMITTENT CASHIERS, BASE MANAGEMENT HAD REASON NOT TO INCREASE ITS
 VULNERABILITY TO SUCH TURNOVER BY HIRING REINSTATEMENT ELIGIBLES WHO
 COULD ALMOST IMMEDIATELY BID OUT TO BETTER JOBS.  EMPLOYEES WITHOUT
 STATUS WOULD RECEIVE TEMPORARY APPOINTMENTS AND BE REQUIRED TO WORK
 SEVERAL MONTHS BEFORE ACQUIRING STATUS AND THEN AN ADDITIONAL 90 DAYS
 BEFORE BEING ELIGIBLE TO BID OUT.  A PERHAPS MORE STABLE, IF LESS
 EXPERIENCED STAFF COULD IN THIS MANNER BE ASSEMBLED.  /1/
 
    5.  FROM MID-SEPTEMBER UNTIL HER INTERVIEW ON DECEMBER 13, CARROLL
 REGULARLY VISITED HAMMERSMITH AT THE CASHIER'S CAGE IN THE COMMISSARY
 AND INQUIRED ABOUT JOB DEVELOPMENTS.  ALTHOUGH NEVER ACCUSING CARROLL OF
 BEING DISCOURTEOUS OR UNFRIENDLY, THIS PERSISTENCE, ACCORDING TO
 HAMMERSMITH AND ASSISTANT HEAD CASHIER GOLDIE WILEY, WAS RECEIVED AS
 PRESSURE BY HAMMERSMITH, AND CONSTITUTED "HASSLING" WHICH HAMMERSMITH
 CAME TO RESENT.  /2/ HAMMERSMITH TESTIFIED THAT CARROLL CONSTANTLY ASKED
 WHEN SHE WOULD BE HIRED, AND SAID SHE WOULD MAKE TROUBLE IF SHE WAS NOT.
  CARROLL ACKNOWLEDGES HAVING TOLD HER ABOUT THE INVITATION TO REPORT ANY
 REFUSAL TO REHIRE TO THE OFFICE OF SPECIAL INVESTIGATIONS, AND FURTHER,
 THAT IF SHE WAS NOT "SENT FOR CONSIDERATION" FOR EMPLOYMENT (MADE
 ELIGIBLE BY PERSONNEL) SHE WOULD QUESTION IT.  ON SEVERAL OCCASIONS SHE
 ASKED HAMMERSMITH TO CALL PERSONNEL "RIGHT THEN," WHILE SHE WAITED, AND
 SHE ONCE INQUIRED ABOUT THE HOURS WORKED BY PART-TIMERS, SAYING THAT SHE
 WAS "CHECKING UP" ON HER.  AT ABOUT THE TIME OF HER INTERVIEW SHE
 INFORMED THE LEGAL OFFICE THAT SHE COULD BE REACHED AT THE COMMISSARY,
 SO CONFIDENT WAS SHE OF SUCH EMPLOYMENT.  IN ONE SUCH CONVERSATION,
 CARROLL ASSERTS, HAMMERSMITH SAID WHEN ASKED WHETHER CARROLL WOULD GET
 THE JOB, THAT SHE DID NOT KNOW, THAT SHE HAD TO DISCUSS IT WITH WHITLEY
 AND STILL HAD MORE PEOPLE TO INTERVIEW.  HAMMERSMITH AND WHITLEY
 TESTIFIED THAT SHE HAD A FREE HAND IN HIRING.
 
    6.  IN LATE NOVEMBER OR EARLY DECEMBER, COMMISSARY MANAGER WHITLEY
 VISITED CIVILIAN PERSONNEL OFFICER IBBOTSON TO INQUIRE ABOUT PROGRESS ON
 THE LIST OF ELIGIBLES FOR CASHIERS.  IN THE COURSE OF THEIR CONVERSATION
 IBBOTSON TOLD WHITLEY THAT CARROLL HAD BEEN A UNION STEWARD.  WHEN
 WHITLEY REPORTED BACK TO HAMMERSMITH AS TO WHEN THE LIST WOULD BE SENT
 DOWN, ACCORDING TO HIS AND HAMMERSMITH'S TESTIMONY HE REMARKED THAT HE
 DID NOT KNOW THAT CARROLL HAD BEEN A UNION STEWARD.  HAMMERSMITH
 TESTIFIED THAT SHE REPLIED THAT CARROLL WAS, BUT THAT SHE DID NOT THINK
 THAT THAT WAS AN ISSUE, AND THAT WHITLEY AGREED IT WAS NOT.
 
    7.  HELEN BLAIR, A CLERICAL ASSIGNED TO WHITLEY'S OFFICE, AND A UNION
 MEMBER, TESTIFIED THAT SHE OVERHEARD A CONVERSATION BETWEEN WHITLEY AND
 HAMMERSMITH IN DECEMBER WHEN THE FORMER INQUIRED OF THE LATTER ABOUT THE
 PROGRESS OF INTERVIEWS.  HAMMERSMITH ALLEGEDLY RESPONDED THAT SHE DIDN'T
 KNOW WHY SHE HAD TO INTERVIEW CARROLL, WHO KNEW THE NCR REGISTER, HAD
 WORKED THERE AND USED TO BE THE STEWARD, TO WHICH WHITLEY ALLEGEDLY
 RESPONDED "WE DON'T WANT ANYMORE OF THAT UNION IN THE COMMISSARY." /3/
 THIS CONVERSATION ALLEGEDLY OCCURRED AT THE HEAD CASHIER'S CAGE, OUT OF
 MRS. BLAIRS SIGHT, AND WAS ENDED BY A PHONE CALL.  ROZELL COLLINS, ALSO
 A CLERICAL ASSIGNED TO WHITLEY, AND A UNION STEWARD, /4/ TESTIFIED THAT
 IN DECEMBER SHE OVERHEARD A CONVERSATION INVOLVING WHITLEY, HAMMERSMITH
 AND ASSISTANT HEAD CASHIER WILEY.  ALLEGEDLY, WHITLEY ASKED HAMMERSMITH
 WHAT KIND OF PERSON CARROLL WAS, TO WHICH HAMMERSMITH REPLIED "WELL,
 SHE'S A UNION STEWARD AND SHE JUST KEEPS A LOT OF HELL GOING." WHITLEY
 ALLEGEDLY RESPONDED "WELL, WE DON'T WANT ANYMORE OF THAT UNION SHIT HERE
 . . . AND FURTHERMORE I'M NOT GOING TO HAVE ANYMORE OF THAT UNION SHIT
 IN HERE." /5/ WILEY, WHITLEY AND HAMMERSMITH DENIED THAT ANY SUCH
 CONVERSATION TOOK PLACE, ALTHOUGH THE LATTER TWO DID ADMIT TO A
 DISCUSSION OF CARROLL'S FORMER ROLE AS STEWARD, AS RELATED ABOVE.
 
    8.  ON DECEMBER 6, PERSONNEL FORWARDED TO THE COMMISSARY A LIST OF 12
 APPLICANTS ELIGIBLE FOR CONSIDERATION, TO BE INTERVIEWED BY HAMMERSMITH
 FOR THE NINE VACANCIES.  CARROLL WAS INTERVIEWED ON DECEMBER 13.  ON
 THAT OR SOME EARLIER OCCASION, CARROLL HAD INDICATED THAT ONCE HIRED,
 SHE WOULD BE ELIGIBLE TO BID OUT WITHOUT DELAY.  THE APPLICATIONS HAD
 BEEN SCREENED BY GOLDIE WILEY, WHO TOLD HAMMERSMITH THAT CARROLL HAD
 EXTENSIVE CASHIERING EXPERIENCE AND PROBABLY WOULD MAKE A GOOD CASHIER.
 NINE EMPLOYEES WERE SELECTED, ALL FROM THE SO-CALLED LOCAL LABOR MARKET
 (SOMETIMES CALLED THE TEXAS EMPLOYMENT COMMISSION (TEC) SOURCE), WHICH
 IS TO SAY THEY ENJOYED NO CIVIL SERVICE STATUS.  NEITHER CARROLL NOR
 WILEY AND BRIER, THE OTHER TWO REINSTATEMENT ELIGIBLES ON THE LIST FOR
 CONSIDERATION WAS HIRED.  AS NOTED, RESPONDENT IN PART DEFENDS ON THE
 GROUND THAT SUCH REINSTATEMENT ELIGIBLES WERE UNLIKELY TO LAST AS LONG
 AS TEMPORARY EMPLOYEES, AND THAT WILEY AND BRIER WERE NOT UNION
 ACTIVISTS.  HOWEVER, HAMMERSMITH STATED ON THE PERSONNEL FORM THAT WILEY
 DID NOT HAVE ENOUGH EXPERIENCE ON THE CASH REGISTER, AND SAID SIMPLY,
 WITH RESPECT TO CARROLL AND BRIER, THAT SHE HAD SELECTED OTHER
 CANDIDATES.
 
    CARROLL TESTIFIED THAT SHE ASKED HAMMERSMITH WHY SHE HAD NOT BEEN
 HIRED AND WAS TOLD THAT SHE HAD "HASSLED" HAMMERSMITH, WHO TOOK THIS AND
 OTHER THINGS INTO CONSIDERATION, AND THAT HAMMERSMITH DID NOT HAVE TO
 GIVE HER A REASON.  HAMMERSMITH TESTIFIED THAT SHE TOLD CARROLL SHE
 DECIDED NOT TO HIRE HER BECAUSE CARROLL WAS HARRASSING HER.  ON
 EXAMINATION BY COUNSEL FOR THE GENERAL COUNSEL SHE GAVE AS HER REASONS
 THE FACT THAT CARROLL HAD TOLD HER SHE HAD BEEN TOLD SHE DID NOT HAVE TO
 WAIT 90 DAYS BEFORE APPLYING FOR ANOTHER JOB (TAKEN BY HAMMERSMITH AS A
 STATEMENT THAT SHE WOULD NOT STAY), AND THAT SHE FELT THAT CARROLL WAS
 PUTTING PRESSURE ON HER AND THREATENING TO MAKE TROUBLE IF SHE WAS NOT
 HIRED.  HAMMERSMITH ADMITTED THAT CARROLL HAD THE MOST EXPERIENCE AMONG
 THE APPLICANTS IN OPERATING A CASH REGISTER, THAT SHE KNEW REINSTATEMENT
 ELIGIBLE APPLICANT BRIER ALREADY HAD ANOTHER JOB AND WAS LOOKING FOR
 FULL-TIME EMPLOYMENT AND THAT REINSTATEMENT ELIGIBLE APPLICANT WILEY,
 LACKED EXPERIENCE.  THEIR STATUS AS REINSTATEMENT ELIGIBLES WAS
 ACCORDING TO HAMMERSMITH, IMPORTANT ONLY IF THERE WAS REASON TO BELIEVE
 THAT THEY WOULD SEEK TO BID OUT AT AN EARLY DATE.  SHE ADMITTED ALSO
 THAT SELECTED APPLICANT FRAZIER WAS AS LIKELY AS A REINSTATEMENT
 ELIGIBLE TO BID OUT.  SHE ALSO CONCEDED THAT THE EEO PROGRAM HAD NO
 "REAL" IMPACT ON THE DECISION WHETHER TO HIRE CARROLL.  /6/
 
    9.  ALTHOUGH EVIDENCE WAS ADDUCED THAT CARROLL WAS NOT THEREAFTER
 CONSIDERED FOR ANY SIMILAR VACANCY BECAUSE SUCH JOBS WERE FILLED AT THE
 GS-2 LEVEL, BELOW HER MINIMUM ACCEPTABLE LEVEL, A CERTIFICATE OF
 ELIGIBLES WAS IN FACT ISSUED FOR GS-3 CHECKERS ON JANUARY 26, 1979 AND
 ONE PERSON WAS SELECTED FROM IT (G.C. EXHIBIT 17).  CONSISTENT WITH HIS
 POSITION THAT NONE OF THE THREE REINSTATEMENT ELIGIBLES HAD ANY RIGHT TO
 BE CONSIDERED FOR THE VACANCIES FILLED IN DECEMBER, CIVILIAN PERSONNEL
 DIRECTOR IBBOTSON DID NOT REFER THEM FOR CONSIDERATION BY THE HIRING
 OFFICIALS IN THE COMMISSARY.
 
    10.  CARROLL FILED A COMPLAINT OF "UNFAIR EMPLOYMENT PRACTICES" WITH
 THE INSPECTOR GENERAL ON AN UNKNOWN DATE SUFFICIENTLY EARLY TO PROVOKE
 AN INVESTIGATION DURING THE PERIOD FROM JANUARY 15 TO 18, 1979.  THAT
 INVESTIGATION WAS REOPENED, IN PART, UPON CARROLL'S REQUEST THAT
 INSPECTOR GENERAL SHOULD INTERVIEW OTHER WITNESSES AND CONSIDER THE
 IMPACT OF HER ACTIVITY AS A UNION STEWARD UPON HER NONSELECTION, AND
 FURTHER INVESTIGATION TOOK PLACE FROM MARCH 1 THROUGH 8.  THEREAFTER A
 REPORT OF INVESTIGATION ISSUED, A PART OF WHICH WAS FURNISHED TO CARROLL
 PURSUANT TO AN FOIA REQUEST, WHICH IS IN EVIDENCE AS G.C. EXHIBIT 16.
 IT RECORDS THAT BASE MANAGEMENT DEFENDED ITS NONSELECTION OF CARROLL
 EXCLUSIVELY ON THE GROUND THAT SELECTION OF THE SUCCESSFUL APPLICANTS
 WAS BASED UPON THE REQUIREMENTS OF THE BASE EEO PLAN AND ITS SPECIAL
 RECRUITMENT PROGRAM.  NO MENTION WAS MADE IN THAT REPORT, OR THE FIRST
 REPORT, OF THE RETAINABILITY DEFENSE UPON WHICH RESPONDENT RELIED SO
 HEAVILY IN THIS PROCEEDING.  THE RELEVANT "SPECIAL RECRUITMENT" FPM
 PROVISION REQUIRES THAT AGENCIES, IN DECIDING WHICH SOURCE OR SOURCES OF
 CANDIDATES TO USE, MUST DETERMINE "WHICH IS MOST LIKELY TO BEST MEET THE
 AGENCY MISSION OBJECTIVES, CONTRIBUTE FRESH IDEAS AND NEW VIEWPOINTS AND
 MEET THE AGENCY'S AFFIRMATIVE ACTION GOALS."
 
    11.  CIVILIAN PERSONNEL DIRECTOR DAVID IBBOTSON TESTIFIED THAT HIS
 STATEMENT TO THE INSPECTOR GENERAL WAS A FAIR STATEMENT OF THE REASONS
 FOR NONSELECTION OF CARROLL.  THAT STATEMENT SIMPLY PARROTED THE QUOTED
 FPM PROVISION.  HOWEVER, HE OTHERWISE PLACED GREAT, OR AT LEAST
 PARTICULAR EMPHASIS, ON THE FACT THAT THE THREE REINSTATEMENT ELIGIBLES
 WERE NOT HIRED IN ORDER TO KEEP CASHIERS AVAILABLE, AS THEY WERE ASSUMED
 TO WISH ENTRY INTO THE COMMISSARY AS A SPRINGBOARD TO BETTER POSITIONS
 ELSEWHERE.  NEVERTHELESS, THERE IS NO INDICATION THAT SUCH
 CONSIDERATIONS WERE COMMUNICATED TO THE SELECTING OFFICIAL, NOR THAT
 THEY ENTERED SIGNIFICANTLY INTO THE SELECTION PROCESS.  THUS BRIER AND
 WILEY WERE REJECTED FOR OTHER REASONS, AND CARROLL WAS ALLEGEDLY
 REJECTED BECAUSE SHE HAD "HASSLED" OR "HARASSED" HAMMERSMITH AND ALSO
 BECAUSE SHE HAD INDICATED A DISPOSITION TO BID OUT EARLY.
 
                         ANALYSIS AND CONCLUSIONS
 
    THE GENERAL COUNSEL ASSERTS THAT THE NONSELECTION OF CARROLL WAS
 BASED UPON ANIMUS FLOWING FROM HER EARLIER ACTIVITY AS A UNION STEWARD,
 AND THAT THE CIRCUMSTANTIAL EVIDENCE SUPPORTING THIS VIEW IS
 OVERWHELMING.  HE LAYS PARTICULAR STRESS UPON THE SHIFTING AND
 "PRETEXTUAL" NATURE OF THE VARIOUS BASES OFFERED BY MANAGEMENT IN
 EXPLANATION OF ITS ACTION.  MANAGEMENT ASSERTS IT HAD A LEGITIMATE
 REASON FOR AVOIDING THE REINSTATEMENT ELIGIBLES-- TWO OF WHOM WERE NOT
 UNION MEMBERS-- IN THEIR LIKELY PROCLIVITY TO USE CASHIER JOBS AS
 STEPPING STONES.  DIRECT HIRES, ON THE OTHER HAND, WOULD BE LIKELY TO
 STAY, EVEN IF INVOLUNTARILY.  TO THIS IT ADDS THE FACT THAT CARROLL
 TRIED TO PRESSURE HAMMERSMITH TO HIRE HER, THAT SHE USED HER STEWARDSHIP
 "AS A HAMMER TO GET THE JOB." FINALLY (THOUGH NOT NECESSARILY AS A
 MATTER OF PRIORITY), IT ASSERTS THAT THE LOCAL RECRUITMENT PROGRAM, WITH
 ITS EEO COMPONENT, EXPLAINS THE FAILURE TO REHIRE CARROLL.  IT IS, OF
 COURSE, RELIANCE ON THESE MULTIPLE GROUNDS WHICH THE GENERAL COUNSEL
 SEEKS TO EXPLOIT.
 
    THERE IS A STRANGE IRRELEVANCY TO THE DEFENSE BASED ON THE LOCAL
 RECRUITMENT PROGRAM.  ALL THOSE ELIGIBLE FOR CONSIDERATION WERE IN FACT
 LOCAL, ALL WERE FEMALE, MINORITY HIRES LEFT AMPLE VACANCIES, AND THE
 ASSERTED TEC SOURCE EVAPORATED.  MOST IMPORTANTLY, HAMMERSMITH, THE
 SELECTING OFFICIAL ACCORDING TO MANAGEMENT, TESTIFIED THAT THE EEO
 PROGRAM DID NOT BEAR UPON CARROLL'S NONSELECTION.  LIKEWISE, SHE
 TESTIFIED THAT CARROLL'S STATUS AS A REINSTATEMENT ELIGIBLE WAS RELEVANT
 "ONLY IN A WAY," AN APPARENT REFERENCE TO THE FACT THAT IT WAS NOT SUCH
 STATUS, BUT RATHER INDICATION OF AN INTENTION TO USE SUCH STATUS TO BID
 OUT, THAT MATTERED.  WHILE THE LOCAL RECRUITMENT PROGRAM WOULD HAVE
 JUSTIFIED A REFUSAL TO CONSIDER REINSTATEMENT ELIGIBLES AS A SOURCE (AS
 HAPPENED LATER) THEY WERE IN FACT REFERRED FOR CONSIDERATION.  THUS
 PERSONNEL DID NOT PRECLUDE THEIR REHIRE, AND SUCH STATUS DID NOT ALONE
 IMPACT UPON THE DECISION NOT TO REEMPLOY CARROLL.
 
    CARROLL WAS THE MOST EXPERIENCED APPLICANT, AND HER WORK AT DYESS AND
 ELSEWHERE AS A CASHIER WAS HIGHLY REGARDED.  IT IS EVIDENT THAT
 HAMMERSMITH WELCOMED HER REAPPEARANCE AND SOUGHT TO FACILITATE HER
 REEMPLOYMENT.  EITHER CARROLL WORE OUT HER WELCOME WITH HER PERSISTENT,
 SOMEWHAT PRESUMPTUOUS PURSUIT OF THE JOB, OR BY DISCLOSING AN INTENTION
 TO BID OUT QUICKLY, OR SHE WAS NOT HIRED ON THE INSTRUCTIONS OF WHITLEY
 BECAUSE OF HER ACTIVITIES AS A STEWARD.  PERHAPS ALL SUCH REASONS
 ENTERED INTO THE DECISION.  INTERESTINGLY, THE BELIEF THAT SHE WOULD BID
 OUT AS PROMPTLY AS POSSIBLE WAS NOT GIVEN TO HER AS A REASON, NOR DID IT
 PROVOKE ANY DISCUSSION OF HER PLANS.  ACCORDING TO BOTH HAMMERSMITH AND
 CARROLL, "HASSLING" OR "HARASSMENT" WAS THE ONLY SPECIFIC REASON
 ASSIGNED.
 
    THE DEMEANOR OF THE PRINCIPAL WITNESSES HAS NOT AIDED ME.
 HAMMERSMITH, WILEY, CARROLL, BLAIR AND COLLINS GAVE THE IMPRESSION OF
 BEING STRAIGHTFORWARD.  MY CONCLUSIONS THUS ARE PRINCIPALLY BASED ON THE
 LOGIC OF THE SITUATION, AND IN PART UPON BOTH THE SHIFTING AND
 CONTRADICTORY DEFENSES ADVANCED BY THE SEVERAL LAYERS OF MANAGEMENT AND
 THE RELIANCE I PLACE UPON THE TESTIMONY OF HELEN BLAIR AND ROZELLE
 COLLINS, WHO TOOK THE RISK OF TESTIFYING AGAINST THEIR IMMEDIATE
 SUPERIOR IN CIRCUMSTANCES WHERE THERE WAS NO APPARENT REASON FOR THEM TO
 MISSTATE THE FACTS.  ASIDE FROM THE STATEMENT THEY ATTRIBUTE TO WHITLEY,
 THERE IS, IN FACT, NO EVIDENCE OF ANIMUS TOWARD THE UNION.  COLLINS
 RECEIVED A RAISE WHILE STEWARD, CARROLL RECEIVED EXCELLENT REFERENCES
 AFTER HER PERIOD OF ACTIVITY AS STEWARD, AND HAMMERSMITH IN THE
 BEGINNING WAS CERTAINLY HELPFUL TO CARROLL IN HER EFFORT TO SECURE
 EMPLOYMENT.  I DO NOT DOUBT THAT CARROLL CAME TO ANNOY HAMMERSMITH, AND
 TO CONVEY THE IMPRESSION THAT SHE MUST BE HIRED, AND THAT HAMMERSMITH
 FELT AND RESENTED THE PRESSURE.  CARROLL DID NOT DENY HAVING SAID THAT
 SHE WOULD BE ENTITLED TO BID OUT IMMEDIATELY UPON BEING HIRED.  IT IS
 SUSPICIOUS HOWEVER, THAT NEITHER OF THESE REASONS WAS USED ON THE FORM
 RECORDING THE REASON FOR NONSELECTION, THAT THE LATTER WAS NEVER
 COMMUNICATED TO CARROLL, AND THAT THE MAJOR THRUST OF THE DEFENSE
 PRESENTED IN THE INSPECTOR GENERAL INVESTIGATION WAS THE LOCAL
 RECRUITMENT PROGRAM AND ITS EEO COMPONENT.
 
    RESPONDENT CONCEDES THAT WHITLEY AND HAMMERSMITH HAD A CONVERSATION
 ABOUT CARROLL'S STATUS AS A FORMER STEWARD, AFTER WHITLEY WAS INFORMED
 BY IBBOTSON THAT SHE HAD BEEN THE STEWARD.  WHILE HE CLAIMS THAT SUCH
 KNOWLEDGE CAUSED HIM NO "PARTICULAR" CONCERN, I REJECT HIS CLAIM THAT HE
 LEFT THE HIRING DECISION TOTALLY TO HAMMERSMITH.  RATHER I CREDIT THE
 TESTIMONY OF BLAIR AND COLLINS THAT HE TOLD HAMMERSMITH THAT THE
 COMMISSARY DID NOT NEED ANY MORE UNION ACTIVISM, AND I CONCLUDE THAT
 HAMMERSMITH DECIDED NOT TO HIRE CARROLL FOR THAT REASON.  NO OTHER
 PERSUASIVE REASON IS ADVANCED FOR THE NONSELECTION OF A HIGHLY QUALIFIED
 APPLICANT, ONE OF THE FEW WITH RELEVANT EXPERIENCE, AND ONE WHOSE
 PREVIOUS WORK HAD BEEN REGARDED AS OUTSTANDING.  ACCORDINGLY, I FIND
 THAT A VIOLATION OF SECTIONS 19(A)(2) AND (1) OF THE ORDER HAS BEEN
 ESTABLISHED.
 
                              RECOMMENDATION
 
    ON THE BASIS OF THE FOREGOING FINDINGS AND CONCLUSIONS, IT IS
 RECOMMENDED THAT THE AUTHORITY ISSUE THE FOLLOWING ORDER PURSUANT TO 5
 C.F.R.2423.29(C):
 
                                   ORDER
 
    PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491, AS AMENDED, AND
 SECTION 203.26(B) OF THE REGULATIONS THEREUNDER, AND SECTION 2400.2 OF
 THE FINAL RULES AND REGULATIONS, IT IS HEREBY ORDERED THAT THE
 DEPARTMENT OF THE AIR FORCE DYESS AIR FORCE BASE, ABILENE, TEXAS SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) REFUSING TO EMPLOY PATRICIA CARROLL, OR ANY OTHER APPLICANT,
 BECAUSE OF MEMBERSHIP IN, OR ACTIVITY IN BEHALF OF, LOCAL 2356, AMERICAN
 FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO.
 
    (B) DISCOURAGING MEMBERSHIP IN LOCAL 2356, AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, OR ANY OTHER LABOR ORGANIZATION, BY DISCRIMINATION
 IN RESPECT TO ANY TERM OR CONDITION OF EMPLOYMENT, BASED UPON
 CONSIDERATIONS OF UNION MEMBERSHIP.
 
    (C) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING OR
 COERCING EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED BY EXECUTIVE ORDER
 11491.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
 PURPOSES AND POLICIES OF EXECUTIVE ORDER 11491, AS AMENDED.
 
    (A) OFFER EMPLOYMENT AS A SALES STORE CHECKER, GS-3 INTERMITTENT, TO
 PATRICIA CARROLL, OR IF THAT JOB NO LONGER EXISTS, IN A SUBSTANTIALLY
 SIMILAR POSITION, WITHOUT PREJUDICE TO THE SENIORITY OR OTHER PRIVILEGES
 SHE WOULD HAVE ENJOYED BUT FOR THE DISCRIMINATION, AND MAKE HER WHOLE BY
 THE PAYMENT OF THAT SUM OF MONEY WHICH SHE WOULD HAVE EARNED BETWEEN THE
 DATE OF DISCRIMINATORY FAILURE TO HIRE AND THE DATE OF OFFER OF
 EMPLOYMENT, LESS ANY AMOUNTS EARNED ELSEWHERE DURING THAT PERIOD OF
 TIME.
 
    (B) POST AT ITS ABILENE, TEXAS, FACILITY, COPIES OF THE ATTACHED
 NOTICE MARKED "APPENDIX" ON FORMS TO BE FURNISHED BY THE FEDERAL LABOR
 RELATIONS AUTHORITY.  UPON RECEIPT OF SUCH FORMS THEY SHALL BE SIGNED BY
 THE BASE COMMANDER AND SHALL BE POSTED AND MAINTAINED BY HIM FOR 60
 CONSECUTIVE DAYS THEREAFTER IN CONSPICUOUS PLACES, INCLUDING ALL PLACES
 WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED.  THE BASE COMMANDER
 SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED,
 DEFACED OR COVERED BY ANY OTHER MATERIAL.
 
    (C) NOTIFY THE FEDERAL LABOR RELATIONS AUTHORITY, IN WRITING, WITHIN
 30 DAYS FROM THE DATE OF THIS ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO
 COMPLY HEREWITH.
 
                              JOHN H. FENTON
 
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  MARCH 21, 1980
 
    WASHINGTON, D.C.
 
    /1/ THIS EFFORT TO ANALYZE AN IMPORTANT ELEMENT OF THE DEFENSE IS
 COMPLICATED BY THE FACT THAT SIX OF THE EIGHT CASHIER'S HIRED FOR WHOM
 PERSONNEL RECORDS WERE AVAILABLE WERE WIVES OF SERVICEMEN, AND THEREFORE
 SUBJECT TO RELOCATION WITH THEIR HUSBANDS.  HAMMERSMITH TESTIFIED THAT
 THERE IS MUCH TURNOVER AMONG MILITARY DEPENDENTS.
 
    /2/ THUS, WILEY TOLD HAMMERSMITH SHE FELT THAT CARROLL WAS PUTTING
 PRESSURE ON HER, AND HAMMERSMITH RESPONDED THAT SHE DID FEEL SHE WAS
 BEING PRESSURED.  NEVERTHELESS WILEY DESCRIBED THE VISITS AS FRIENDLY.
 THEY WERE ANNOYING SHE SAID, BECAUSE THE QUESTIONS REPEATEDLY PUT COULD
 ONLY BE ANSWERED BY PERSONNEL.
 
    /3/ I CONSIDER IT INSIGNIFICANT THAT THE WORD "UNION" WAS OMITTED
 FROM BLAIR'S STATEMENT GIVEN THE INSPECTOR GENERAL, AS IT IS CLEAR FROM
 THE CONTEXT THAT THE REFERENCE WAS TO THE UNION.
 
    /