Department of Health, Education and Welfare, Office of Civil Rights, Region VI, Dallas Texas (Respondent) and National Federation of Federal Employees, Local 266 (Charging Party)



[ v05 p373 ]
05:0373(50)CA
The decision of the Authority follows:


 5 FLRA No. 50
 
 DEPARTMENT OF HEALTH, EDUCATION
 AND WELFARE, OFFICE OF CIVIL
 RIGHTS, REGION VI, DALLAS, TEXAS /1/
 Respondent
 
 and
 
 LOCAL 266, NATIONAL FEDERATION
 OF FEDERAL EMPLOYEES
 Charging Party
 
                                            Case Nos. 6-CA-9 
                                                      6-CA-44 
                                                      6-CA-45 
                                                      6-CA-51 /2/
 
                            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 CERTAIN UNFAIR LABOR PRACTICES AND HAD NOT ENGAGED IN OTHERS
 UNDER EXECUTIVE ORDER 11491, AS AMENDED.  THE GENERAL COUNSEL FILED
 EXCEPTIONS TO THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND
 ORDER AND THE RESPONDENT FILED AN OPPOSITION THERETO.  ADDITIONALLY, THE
 GENERAL COUNSEL FILED A MOTION TO STRIKE CERTAIN STATEMENTS MADE IN THE
 RESPONDENT'S OPPOSITION.
 
    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 2423.1 OF THE AUTHORITY'S RULES AND REGULATIONS
 (5 CFR 2423.1).  THE AUTHORITY CONTINUES TO BE RESPONSIBLE FOR THE
 PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN SECTION 7135(B) OF THE
 STATUTE.
 
    THEREFORE, PURSUANT TO SECTION 2423.29 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.  THE AUTHORITY HAS CONSIDERED THE ADMINISTRATIVE LAW
 JUDGE'S RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THIS
 CASE, INCLUDING THE EXCEPTIONS FILED AND THE RESPONDENT'S OPPOSITION
 THERETO.  THE AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S
 FINDINGS, CONCLUSIONS AND RECOMMENDATIONS ONLY TO THE EXTENT CONSISTENT
 HEREWITH.  /3/
 
    THE ADMINISTRATIVE LAW JUDGE FOUND THAT RESPONDENT HAD NOT, AS
 ALLEGED, VIOLATED SECTION 19(A)(2) AS A RESULT OF ITS FAILURE TO SELECT
 THREE INDIVIDUALS FOR THE POSITIONS OF SUPERVISORY EQUAL OPPORTUNITY
 SPECIALIST, GS-160-13.  THE CHARGING PARTY HAD CONTENDED THAT THE REASON
 FOR THE NON-SELECTIONS WAS UNION ANIMUS.  THE ADMINISTRATIVE LAW JUDGE
 FOUND THAT THE EVIDENCE DID NOT SUPPORT A CONCLUSION THAT UNION
 CONSIDERATIONS PLAYED A PART IN THE SELECTIONS INVOLVED.  THE AUTHORITY
 AGREES.  HOWEVER, THE AUTHORITY FINDS, CONTRARY TO THE ADMINISTRATIVE
 LAW JUDGE, THAT THE ALLEGED VIOLATION OF SECTION 19(A)(1) AS A RESULT OF
 CERTAIN REMARKS MADE CONCERNING THE PRO-UNION ORIENTATION OF THE THREE
 ALLEGED DISCRIMINATES BY AN INTERVIEW PANEL CONSISTING OF THREE
 MANAGEMENT REPRESENTATIVES, WHICH WAS CONDUCTED IN CONJUNCTION WITH THE
 SELECTION PROCESS HAS NOT BEEN ESTABLISHED.  IN THIS REGARD, THE
 AUTHORITY NOTES THAT THIS LATTER CONDUCT OF THE RESPONDENT WAS NOT
 ALLEGED IN EITHER THE CHARGE OR COMPLAINT AS VIOLATIVE OF THE ORDER.
 MOREOVER, THE AUTHORITY DOES NOT VIEW THE MATTER AS HAVING BEEN
 LITIGATED AS A VIOLATION AT THE HEARING.
 
    AS NOTED EARLIER, THE GENERAL COUNSEL MOVED TO STRIKE SEVERAL
 STATEMENTS MADE BY THE RESPONDENT IN ITS OPPOSITION TO THE GENERAL
 COUNSEL'S EXCEPTIONS.  THE GENERAL COUNSEL ARGUED THAT SUCH STATEMENTS
 CONSTITUTED EX PARTE EVIDENCE.  THE GENERAL COUNSEL'S MOTION IS HEREBY
 GRANTED EXCEPT INSOFAR AS IT RELATES TO INFORMATION PROVIDED CONCERNING
 THE ESTABLISHMENT OF THE DEPARTMENT OF EDUCATION AND THE REDESIGNATION
 OF THE DEPARTMENT OF HEALTH, EDUCATION AND WELFARE AS THE DEPARTMENT OF
 HEALTH AND HUMAN SERVICES.
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINTS IN AUTHORITY CASE NOS.
 6-CA-9, 6-CA-44 AND 6-CA-45 BE, AND THEY HEREBY ARE, DISMISSED IN THEIR
 ENTIRETY.
 
    ISSUED, WASHINGTON, D.C., MARCH 20, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
   
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    THOMAS C. LONG
    REGIONAL LABOR RELATIONS OFFICER
    DEPARTMENT OF HEALTH, EDUCATION
    AND WELFARE
    MAIN TOWER BUILDING, ROOM 1000
    1200 MAIN STREET
    DALLAS, TEXAS 75202
                            FOR THE RESPONDENT
 
    STEVEN M. ANGEL, ESQ.
    FEDERAL LABOR RELATIONS AUTHORITY, REGION VI
    DOWNTOWN POST OFFICE STATION
    P.O. BOX 2640
    DALLAS, TEXAS 75221
                          FOR THE GENERAL COUNSEL
 
    BEFORE:  ELI NASH, JR.
    ADMINISTRATIVE LAW JUDGE
 
                            DECISION AND ORDER
 
                           STATEMENT OF THE CASE
 
    PURSUANT TO AN ORDER CONSOLIDATING CASES, CONSOLIDATED COMPLAINT AND
 NOTICE OF HEARING ISSUED ON JULY 31, 1979 BY THE REGIONAL DIRECTOR,
 REGION VI, FEDERAL LABOR RELATIONS AUTHORITY, A HEARING WAS HELD BEFORE
 THE UNDERSIGNED ON OCTOBER 23 AND 24, 1979 AT DALLAS, TEXAS.  /5/
 
    THE CONSOLIDATED COMPLAINTS BASED ON CHARGES FILED BY NATIONAL
 FEDERATION OF FEDERAL EMPLOYEES (NFFE), LOCAL 266 (HEREINAFTER CALLED
 THE UNION) /6/ ALLEGE THAT THE DEPARTMENT OF HEALTH, EDUCATION AND
 WELFARE, OFFICE OF CIVIL RIGHTS, REGION VI, DALLAS (HEREINAFTER CALLED
 RESPONDENT) VIOLATED SECTION 19(A)(2) AND (1) OF EXECUTIVE ORDER 11491,
 AS AMENDED BY FAILING AND REFUSING TO PROMOTE EMPLOYEES GEORGE D. COLE,
 HECTOR M. FLORES AND JAY ASKEW THEREBY DISCOURAGING MEMBERSHIP IN THE
 UNION.
 
    BOTH PARTIES WERE REPRESENTED AT THE HEARING, WERE AFFORDED FULL
 OPPORTUNITY TO BE HEARD, TO ADDUCE EVIDENCE AND TO EXAMINE AS WELL AS
 CROSS-EXAMINE WITNESSES.  THEREAFTER, BOTH PARTIES FILED BRIEFS WHICH
 HAVE BEEN DULY CONSIDERED.
 
    UPON THE ENTIRE RECORD HEREIN, FROM MY OBSERVATION OF THE WITNESSES
 AND THEIR DEMEANOR, AND FROM ALL OF THE TESTIMONY AND EVIDENCE ADDUCED
 AT THE HEARING, I MAKE THE FOLLOWING FINDINGS AND CONCLUSIONS:
 
                             FINDINGS OF FACT
 
    AT ALL TIMES MATERIAL HEREIN THE UNION HAS BEEN AND STILL IS THE
 COLLECTIVE BARGAINING REPRESENTATIVE OF RESPONDENT'S DALLAS REGIONAL
 EMPLOYEES.
 
    THE MATERIAL FACTS AND CHRONOLOGY OF EVENTS ARE NOT IN DISPUTE NOR IS
 THERE ANY QUESTION OF THE SELECTING OFFICIALS PREROGATIVES TO SELECT ANY
 CANDIDATE OR CANDIDATES FROM THE "BEST QUALIFIED" LIST.  THE GOVERNING
 REGULATIONS AND PROCEDURES PERTAINING TO SUCH PREROGATIVES ARE CONTAINED
 IN FPM CHAPTER 335 AND THE REGIONAL MERIT PROMOTION PLAN WHICH PROVIDES
 IN PERTINENT PART:
 
    "SELECTING OFFICIALS ARE ENTITLED TO MAKE SELECTIONS FROM ANY OF THE
 CANDIDATES ON A
 
    PROMOTION CERTIFICATE, WHETHER OR NOT THE CANDIDATES ARE IN RANK
 ORDER, BASED ON THEIR
 
    JUDGEMENT OF HOW WELL THE CANDIDATE WILL PERFORM IN THE PARTICULAR
 JOB BEING FILLED." FURTHER, SECTION X OF RESPONDENT'S MERIT PROMOTION
 PLAN ALSO SETS OUT IN DEFINITIVE DETAIL THE RIGHT OF THE SELECTING
 OFFICIAL TO SELECT FROM ANY OF THE CANDIDATES REFERRED.  THE DISPUTE
 HEREIN AROSE SPECIFICALLY OVER THE PANEL INTERVIEW PROCESS AND THE
 SELECTION PROCEDURES UTILIZED BY THE ALLEGED SELECTING OFFICIAL DR. JOHN
 BELL.
 
    ON OR ABOUT OCTOBER 30, 1978, RESPONDENT ISSUED VACANCY ANNOUNCEMENT
 NO. 475-78 FOR FOUR (4) POSITIONS OF SUPERVISORY EQUAL OPPORTUNITY
 SPECIALIST, GS-160-13, IN ITS ELEMENTARY AND SECONDARY EDUCATION
 DIVISION.  OF THE MANY APPLICANTS APPLYING FROM THE GS-12 LEVEL
 APPROXIMATELY FIFTEEN WERE SUCCESSFUL IN BEING PLACED ON THE "BEST
 QUALIFIED" LIST FOR REFERRAL TO THE SELECTING OFFICIAL.  IN ADDITION,
 SEVEN OTHER APPLICANTS WHO WERE ELIGIBLE FOR REASSIGNMENT OR CHANGE TO
 LOWER GRADES ALSO APPLIED FOR THE VACANCIES.  THEREFORE, OVER 20
 CANDIDATES TOGETHER WITH SUPPORTING DOCUMENTATION WERE SUBMITTED ON THE
 CERTIFICATE OF ELIGIBLES FOR NO. 475-78 DATED NOVEMBER 9, 1978.
 
    THE BASIC QUALIFICATIONS WERE ROUTINELY DETERMINED THROUGH USE OF A
 PANEL OF THREE EMPLOYEES USING WEIGHTS AND FACTORS PRESCRIBED BY THE
 REGIONAL MERIT PROMOTION PLAN AND EACH INDIVIDUAL APPLICANT WAS ASSIGNED
 AN AVERAGE SCORE AND A RANK ORDER BY A PERSONNEL STAFFING SPECIALIST.
 COMPLAINANTS COLE, ASKEW AND FLORES WERE RANKED 1, 2 AND 6 RESPECTIVELY
 FROM AMONG APPROXIMATELY 15 CANDIDATES.  THE INDIVIDUAL SELECTED TO FILL
 THE POSITIONS WERE RANKED 4, 5, 7 AND 9, RESPECTIVELY.
 
    THE RECORD DEMONSTRATES THAT THE SELECTIONS WERE MADE SHORTLY AFTER A
 PERIOD OF SEVERELY DETERIORATING LABOR RELATIONS BETWEEN LABOR AND
 MANAGEMENT BEGINNING ABOUT JANUARY 1978 DURING A PLANNED REORGANIZATION
 INVOLVING VARIOUS HEALTH, EDUCATION AND WELFARE REGIONS INCLUDING THE
 RESPONDENT.  THE UNION ACTIVITIES OF THE THREE DISCRIMINATES IS
 DOCUMENTED AND THEIR LEADERSHIP ROLES SET OUT IN THE RECORD.
 
    GEORGE COLE PARTICIPATED IN DRAFTING A LETTER, WHICH WAS SIGNED BY
 THEN UNION PRESIDENT OLSEN, /7/ TO SECRETARY OF HEALTH, EDUCATION AND
 WELFARE CALIFANO COMPLAINING OF MANAGEMENTS ACTIONS INVOLVING THE
 REORGANIZATION.  THE EVIDENCE ESTABLISHED THAT THEN REGIONAL DIRECTOR
 DOROTHY STUCK WAS NOT PLEASED WITH THIS ACTION BY THE UNION.  FOLLOWING
 THIS LETTER, PERIODIC LABOR-MANAGEMENT MEETING WERE SCHEDULED BY STUCK
 WHICH FLORES, COLE AND ASKEW ATTENDED AS UNION REPRESENTATIVES AT ONE
 TIME OR ANOTHER.
 
    DR. JOHN BELL, BRANCH CHIEF OF THE OFFICE OF CIVIL RIGHTS, AND THE
 SELECTING OFFICIAL IN THE PROMOTIONS INVOLVED HEREIN WAS OFTEN NAMED AS
 THE MANAGEMENT OFFICIAL INVOLVED WHEN GRIEVANCES WERE FILED.  DR. BELL
 CLEARLY INDICATED, HIS DISPLEASURE AT HAVING GRIEVANCES FILED AGAINST
 HIM.  FURTHER, ON ONE OCCASION BELL TOLD COLE THAT HE DID NOT WANT THE
 UNION INTERFERING WITH MANAGEMENT-EMPLOYEE RELATIONSHIP.  SPECIFICALLY,
 BELL TOLD COLE THAT HE HAD NO RIGHT TO TALK TO EMPLOYEES, BUT THAT
 ADVISE AND COUNSEL WAS THE RESPONSIBILITY OF BELL.  COLE RESPONDED THAT
 HE WAS ACTING IN HIS ROLE AS UNION STEWARD.  FURTHERMORE, BELL TOLD COLE
 THAT HE DID NOT WANT ANY GRIEVANCES FILED AGAINST HIM PERIOD.
 
    DURING THIS SAME PERIOD A PROBLEM WAS RAISED REGARDING THE DISCHARGE
 OF EIGHT (8) PROBATIONARY EMPLOYEES FROM DR. BELL'S SHOP.  THESE
 DISCHARGES RESULTED IN THE FILING OF GRIEVANCES TO OBTAIN INFORMATION
 CONCERNING BOTH THE DISCHARGES AND THE PLANNED REORGANIZATION.  ALTHOUGH
 CLEAR FROM THE RECORD THAT THESE DISCHARGES WERE SUBSEQUENTLY CARRIED
 OUT, A MEETING IN WHICH COLE AND ASKEW AND SEVERAL MANAGEMENT OFFICIAL
 INCLUDING BELL OCCURRED.  APPARENTLY, AT THE ABOVE MEETING BELL WAS
 QUESTIONED BY COLE AND ASKEW RATHER THOROUGHLY REGARDING THESE ACTIONS.
 
    A COPY OF RESPONDENT'S POSITION CLASSIFICATION AND PERSONNEL
 MANAGEMENT REVIEW-- REGIONAL OFFICE FOR CIVIL RIGHTS, DALLAS REGION
 SHOWS THE CLIMATE FOR LABOR RELATIONS DURING THIS PERIOD.  THE REPORT
 STATES IN PART:
 
    A.  BACKGROUND:  AS A PART OF THE EMPLOYEE RELATIONS INTERVIEWS THREE
 OCR UNION STEWARDS
 
    WERE ALSO INTERVIEWED.  FOR APPROXIMATELY THE LAST 18 MONTHS THE
 MAJORITY OF THE OFFICERS IN
 
    NFFE LOCAL 266 HAVE BEEN FROM OCR.  FROM JUNE 1978 TO MARCH 1979 THE
 LABOR-MANAGEMENT
 
    RELATIONSHIP IN OCR CHANGED FROM ONE OF OPEN TWO-WAY COMMUNICATION TO
 ONE OF CONSTANT
 
    CONFRONTATION AND CHALLENGE.  THERE WERE SEVERAL FACTORS WHICH
 IMPACTED ON THIS
 
    RELATIONSHIP:  THE INCREASED WORKLOAD PRESSURE TO CLOSE AS MANY CASES
 AS POSSIBLE PRIOR TO THE
 
    CLOSE OF FY 78, THE TRANSFER OF EIGHT (8) SLOTS TO DOL, THE
 TERMINATION OF EIGHT (8)
 
    PROBATIONARY TRIAL PERIOD EMPLOYEES, THE PLANNING AND IMPLEMENTATION
 OF THE OCR REORGANIZATION
 
    THE FILLING OF THE GS-13 BRANCH CHIEF JOBS.  THE REPORT ALSO NOTES AT
 P. 25:
 
    (2) COMMUNICATIONS:  THE UNION ALSO FEELS THAT THERE IS NOT AN
 EFFECTIVE MEANS OF
 
    COMMUNICATION BETWEEN OCR MANAGEMENT AND UNION OFFICIALS.  WHILE
 REGULARLY SCHEDULED
 
    CONSULTATION SESSIONS WERE BEGUN DURING EARLY 1978, SUCH SESSIONS
 WERE DISCONTINUED DURING
 
    AUGUST 1978 AND THE RELATIONSHIP DETERIORATED TO ONE OF CONFRONTATION
 AND MEMO WRITING WITH
 
    THE UNION FILING VARIOUS GRIEVANCES AND ULP PRE-COMPLAINT CHARGES
 AGAINST OCR
 
    MANAGEMENT.  THIS DETERIORATION WAS FELT TO BE PRIMARILY RESULTS OF
 OCR MANAGEMENT'S LACK OF
 
    ABILITY TO ADEQUATELY DEAL WITH AGGRESSIVE UNION OFFICIALS WHICH WAS
 MANIFESTED BY AN APPARENT
 
    ANTI-UNION ATTITUDE WHICH RESULTED IN A REDUCTION OF INTERPERSONAL
 COMMUNICATIONS BETWEEN
 
    MANAGEMENT AND THE UNION.  FINALLY, THE REPORT STATED:
 
    (5) RECENT LMR ACTIVITIES:  IT SHOULD ALSO BE POINTED OUT THAT SINCE
 THE NEW RD HAS ARRIVED
 
    (MARCH 1979) THERE HAS BEEN A NOTICEABLE IMPROVEMENT IN THE LMR
 WITHIN OCR.  THIS OBSERVATION
 
    IS BASED ON THE FEEDBACK FROM THE INTERVIEWS WITH THE UNION STEWARDS
 AS WELL AS CONTACT WITH
 
    OTHER UNION OFFICIALS.  THE NEW RD'S MANAGEMENT STYLE AND METHOD OF
 DEALING WITH UNION IS
 
    MARKEDLY DIFFERENT FROM THE PREVIOUS RD.  THE MAJORITY OF THE LMR
 PROBLEMS HAVE BEEN RESOLVED
 
    AND THE MANAGEMENT-UNION RELATIONSHIP AT THIS TIME IS MUCH IMPROVED
 COMPARED TO WHAT IT WAS IN
 
    MARCH 1979 WHEN THE NEW RD CAME ON BOARD.
 
    AGAINST THIS BACKGROUND, ABOUT 20 CANDIDATES FOR THE POSITIONS WERE
 INTERVIEWED ON NOVEMBER 14, 1979 BY A PANEL OF REGIONAL DIRECTORS
 CONSISTING OF VIRGINIA APODACA (FORMERLY BALDERAMA), DEWEY DODDS AND
 TAYLOR AUGUST, WHO AT THE TIME OF THE INSTANT HEARING HAD BEEN APPOINTED
 REGIONAL DIRECTOR IN DALLAS.  THIS PANEL WAS THE FIRST SUCH PANEL
 CONVENED IN CONNECTION WITH PROMOTIONS IN DALLAS.  WHILE IT APPEARS THAT
 THERE WAS INTERNAL RESISTANCE TO THE PANEL THE REGIONAL DIRECTOR FELT
 THAT IT WOULD HELP IN THE SELECTION PROCESS AND INSISTED ON ITS USE.
 FURTHER THIS TYPE PANEL IS APPARENTLY USED IN OTHER REGIONS ON A REGULAR
 BASIS.
 
    ON THE INTERVIEW REPORT FORMS, REGIONAL DIRECTOR TAYLOR AUGUST MADE
 THE FOLLOWING COMMENT REGARDING HECTOR FLORES:
 
    EXTREMELY LABOR ORIENTED-- TRANSITION FROM PRO-UNION WOULD BE
 DIFFICULT FOR APPLICANT.  REGIONAL DIRECTOR DEWEY DODDS MADE SIMILAR
 REMARKS TO THE EFFECT THAT:
 
    QUESTIONABLE AS TO HOW WELL HE COULD MOVE FROM LABOR ADVOCATE TO
 MANAGEMENT ROLE.  WITH REGARD TO COLE, DEWEY DODDS NOTED:
 
    HAS POTENTIAL-- IF HE COULD BE TRANSFERRED INTO BECOMING A MANAGEMENT
 ADVOCATE, THE WAY HE
 
    WAS A MANAGEMENT CRITIC.  FURTHER, REGIONAL DIRECTOR VIRGINIA APODACA
 STATED:
 
    THIS CANDIDATE IS A STRONG EMPLOYEE ADVOCATE;  DID NOT DEMONSTRATE
 THAT HE COULD MAKE
 
    SUCCESSFUL TRANSITION TO A NEW ROLE.  CONCERNING ASKEW, DEWEY DODDS
 OBSERVED:
 
    WANTS TO BE AN ADVISOR TO STAFF RATHER THAN SUPERVISE.
 
    ACCORDING TO DR. BELL, WHO MADE THE SELECTIONS FOR THE FOUR (4)
 SUPERVISORY POSITIONS, HE HAD NO KNOWLEDGE OF THE RATING AND RANK
 ASSIGNED TO THE APPLICANTS BY THE RATING PANEL AND THE PERSONNEL OFFICE.
  HE TESTIFIED THAT HE WAS IN TRAVEL STATUS THE WEEK THE APPLICANTS WERE
 INTERVIEWED BY THE INTERVIEW PANEL AND THAT UPON HIS RETURN TO THE
 OFFICE ON MONDAY, NOVEMBER 20 HE WAS GIVEN THE UNRANKED CERTIFICATE OF
 ELIGIBLES AND THE APPLICATIONS.  ON NOVEMBER 2, HE SELECTED RICHARD W.
 GONZALES, ELNORA DUNCAN, TED CRIM AND MAXEY MARSHALL FOR THE POSITIONS.
 DR. BELL TESTIFIED THAT HE DID NOT CONSIDER THE INTERVIEW REPORT FORMS
 OF THE INTERVIEW PANEL ALTHOUGH DIRECTED TO DO SO BY REGIONAL DIRECTOR
 STUCK, SINCE HE CONSIDERED THAT PROCESS TO BE A WASTE IN THIS PARTICULAR
 CASE AS HE WAS VERY FAMILIAR WITH THE SKILLS, KNOWLEDGE AND ABILITIES OF
 EACH OF THE APPLICANTS BASED ON 3 TO 9 YEARS OF EXPERIENCE EITHER
 WORKING WITH OR SUPERVISING THE APPLICANTS.  DR. BELL FURTHER INDICATED
 THAT AFTER MAKING HIS DECISION ON THE SELECTIONS HE WAS GIVEN THE
 INTERVIEW REPORT PACKAGE TO REVIEW BUT THAT HE ONLY "GLEANED" THE
 PACKAGE AND EVEN THOUGH HE COULD HAVE REVISED HIS INITIAL SELECTIONS, HE
 DID NOT CHOOSE TO DO SO.  FINALLY, HE TESTIFIED THAT HE DID NOT NOTICE
 THE REMARKS ON THE INTERVIEW REPORT FORM OF GEORGE COLE OR HECTOR FLORES
 WHICH HAD UNION OVERTONES AND DID NOT KNOW OF THESE REMARKS UNTIL THE
 UNFAIR LABOR PRACTICE CHARGES WERE FILED IN THE CASE.
 
    DR. BELL TESTIFIED THAT HE RATED EACH APPLICANT AGAINST ESTABLISHED
 CRITERIA SUCH AS JOB KNOWLEDGE;  WRITING SKILLS;  MOTIVATION;
 FELLOWSHIP AND LEADERSHIP;  ORAL SKILLS;  ABILITY TO ANALYZE DATA;
 TEAMSHIP;  ABILITY TO ORGANIZE WORK AND SET PRIORITIES;  INTERPERSONAL
 RELATIONS SKILLS;  ABILITY TO TRAIN STAFF;  AND, ADDITIONAL FORMAL
 TRAINING.
 
    AT THE HEARING DR. BELL ANALYZED THE ESTABLISHED CRITERIA AGAINST THE
 STRENGTHS AND WEAKNESSES OF EACH OF THE DISCRIMINATES.  WITH REGS. TO
 COLE, WHO HE RATED AS OUTSTANDING IN THE AREA OF JOB KNOWLEDGE, DR. BELL
 FOUND HIM ABRASIVE AND WITH DIFFICULTY IN FOLLOWING DIRECTION.
 ACCORDING TO DR. BELL, COLE'S DIFFICULTY IN INTERFACING WAS NOT RELATED
 TO THE UNION.  HE FURTHER TESTIFIED THAT COLE HAD DIFFICULTY IN RELATING
 TO HIM AS A SUPERVISOR.
 
    MR. ASKEW, ACCORDING TO DR. BELL HAD STRENGTH IN INTERPERSONAL
 RELATIONS BUT WEAKNESSES IN JOB KNOWLEDGE, WRITING SKILLS, MOTIVATION OF
 STAFF AND ABILITY TO TRAIN.  HE NOTED THAT BOTH ASKEW AND HECTOR FLORES
 WERE GENERALLY WEAKER THAN THE OTHER PERSONS WHO APPLIED FOR THE
 SUPERVISORY POSITIONS.
 
    MR. FLORES ACCORDING TO DR. BELL HAD EXTREME WEAKNESS IN JOB
 KNOWLEDGE AND APPLICATION OF KNOWLEDGE, EXTREME WEAKNESS IN WRITING
 SKILLS AND IN THE AREA OF ANALYSIS AND DRAWING A PROPER AND REASONABLE
 CONCLUSION.  HE FURTHER NOTED A LACK OF MOTIVATION EXCEPT AS TO OUTSIDE
 WORK.  DR. BELL ADDED THAT HE COULD NOT THINK OF A STRENGTH OF FLORES
 EXCEPT IN THE AREA OF OUTSIDE ACTIVITIES.
 
    WHILE DR. BELL TESTIFIED THAT THESE EMPLOYEES HAD BEEN COUNSELLED AS
 TO THEIR VARIOUS WEAKNESSES, THERE IS NO RECORD EVIDENCE OF THESE
 EMPLOYEES BEING DIRECTLY TOLD BY DR. BELL THAT THEIR WORK REQUIRED
 IMPROVEMENT IN ANY SPECIFIC AREA.  HOWEVER, THERE IS TESTIMONY BY MR.
 JAMES C. MCCLURE, REGARDING COUNSELLING TO BOTH FLORES AND COLE
 CONCERNING AT LEAST SOME OF THE WEAKNESSES MENTIONED BY DR. BELL.
 
    SUBSEQUENTLY, THREE ADDITIONAL SUPERVISORY JOBS BECAME AVAILABLE
 GEORGE COLE WAS SELECTED TO ACT IN AN ACTING BRANCH CHIEF CAPACITY IN
 MAY 1979 AND WAS PROMOTED TO BRANCH CHIEF AFTER THE POSITIONS WERE
 POSTED IN OCTOBER 1979.  FLORES AND ASKEW AGAIN APPLIED BUT WERE
 NON-SELECTED BY DR. BELL.
 
                        DISCUSSION AND CONCLUSIONS
 
    THE LAW IS CLEAR THAT WHEN ANTI-UNION CONSIDERATIONS RESULT IN THE
 NON-SELECTION OF AN EMPLOYEE FOR A PROMOTION, A VIOLATION OF SECTION
 19(A)(2) AND (1) OF THE EXECUTIVE ORDER, AS AMENDED, IS ESTABLISHED.
 HEW, SOCIAL SECURITY ADMINISTRATION, SAN JUAN, PUERTO RICO, A/SLMR NO.
 1127;  VETERANS ADMINISTRATION CENTER, LEAVENWORTH, KANSAS, 1 FLRA 111.
 FURTHERMORE, WHERE AGENCY MANAGEMENT HAS DISCRIMINATORILY AFFECTED
 EMPLOYEE TERMS AND CONDITIONS OF EMPLOYMENT BASED ON UNION
 CONSIDERATIONS, A VIOLATION WILL BE FOUND EVEN WHERE A LEGITIMATE BASIS
 FOR THE MANAGEMENT ACTION EXISTS WHEN UNION CONSIDERATIONS ALSO ARE
 SHOWN TO HAVE PLAYED PART.  CF. HEW, SOCIAL SECURITY ADMINISTRATION, SAN
 JUAN, PUERTO RICO, SUPRA:  THE GENERAL COUNSEL HOWEVER, HAS A BURDEN OF
 PROVING KNOWLEDGE OF THE EMPLOYEES UNION ACTIVITY AND UNION ANIMUS AS
 MOTIVATION FOR THE DISCRIMINATING ACTION.
 
    THE GENERAL COUNSEL CONTENDS THAT THE THREE DISCRIMINATES WERE
 INVOLVED IN VOCIFEROUS UNION ACTIVITIES, WERE IN VISIBLE UNION POSITIONS
 AND THAT THE NON-SELECTIONS WERE BASED ON THEIR ENGAGING IN PROTECTED
 ACTIVITIES.  IN ADDITION, THE GENERAL COUNSEL ARGUES THAT THE THREE
 INDIVIDUALS, COLE, ASKEW AND FLORES WERE AMONG THE TOP SEVEN INDIVIDUALS
 ON THE BEST QUALIFIED LIST IN ORDER OF RANKING, AND THAT BUT FOR THEIR
 UNION ACTIVITY, THEY WOULD HAVE BEEN SELECTED FOR SUPERVISORY POSITIONS.
  RESPONDENT MAINTAINS THAT EACH OF THESE EMPLOYEES HAD CERTAIN
 WEAKNESSES WHICH REFLECTED ON HIS POTENTIAL AS A SUPERVISOR AND THAT
 WHEN THESE WEAKNESSES WERE WEIGHED AGAINST THE OTHER CANDIDATES, ITS
 SELECTIONS WERE PROPER.  IN THIS REGARD, DR. JOHN BELL, THE SELECTING
 OFFICIAL IN THIS INSTANCE, TESTIFIED THAT HIS SELECTIONS WERE BASED ON A
 SPECIFIC SET OF CRITERIA APPLIED TO EACH OF THE CANDIDATES AND HIS
 PERSONAL KNOWLEDGE OF EACH INDIVIDUAL.  FURTHER, DR. BELL TESTIFIED THAT
 ASKEW AND FLORES WERE WEAKER, WHEN WEIGHED AGAINST THE ESTABLISHED
 CRITERIA THAN ANY OF THE OTHER CANDIDATES APPLYING FOR THE SUPERVISORY
 POSITIONS.
 
    THAT THERE WAS ANIMUS AGAINST THE UNION IS CLEARLY SHOWN BY THE
 RECORD.  RESPONDENT'S REPORTS CONFIRM THAT THE LABOR RELATIONS CLIMATE
 IN THE DALLAS OFFICE WAS ONE OF CONFRONTATION.  HOWEVER, THERE IS REAL
 EVIDENCE THAT DESPITE THE POOR LABOR RELATIONS CLIMATE UNION ADHERENT
 WERE APPOINTED TO MANAGEMENT POSITIONS.  FOR EXAMPLE, FORMER UNION
 PRESIDENT OLSEN WAS PROMOTED DESPITE THE FACT THAT HE SIGNED A LETTER
 OVER WHICH MS. STUCK ALLEGEDLY BECAME SO INCENSED.  IN ADDITION, ELNORA
 DUNCAN, A UNION VICE-PRESIDENT WAS PROMOTED DURING THE NOVEMBER
 PROMOTIONS.
 
    IN ASSESSING THE EVIDENCE I FIND NO DIRECTION OF ANIMUS AGAINST THESE
 EMPLOYEES BECAUSE OF THEIR PARTICIPATION IN EITHER THE "MAD EMPLOYEE"
 LETTER OR THE DISMISSAL OF EIGHT (8) PROBATIONARY EMPLOYEES.  THESE
 SITUATIONS INDICATE ONLY THAT EACH SIDE VIGOROUSLY PURSUED ITS
 RESPECTIVE RIGHTS.  NOR IS THERE ANY BASIS FOR FINDING THAT THEIR
 PARTICIPATION IN MONTHLY LABOR-MANAGEMENT RELATIONS MEETINGS WAS
 CONSIDERED IN THE SELECTION PROCESS.  SIMPLY BECAUSE PERSONALITIES OF
 INDIVIDUALS DO NOT MESH DOES NOT NECESSARILY ESTABLISH A VIOLATION OF
 THE ORDER.  WHILE IT IS TRUE, AS THE GENERAL COUNSEL URGES, THAT THE
 TRIER OF FACT MAY INFER MOTIVE FROM THE TOTAL CIRCUMSTANCES PROVE IT IS
 EQUALLY TRUE THAT IN A PROMOTION SITUATION AN ACTIVITY'S HANDS SHOULD
 NOT BE TIED SO AS TO PREVENT IT FROM EXERCISING ITS BEST JUDGMENT IN THE
 SELECTION OF EMPLOYEES FOR PROMOTION, ABSENT UNION CONSIDERATIONS.  IN
 SUCH CIRCUMSTANCES, IT IS MY VIEW THAT THE GENERAL COUNSEL MUST
 ESTABLISH BY A PREPONDERANCE OF THE EVIDENCE THAT UNION CONSIDERATIONS
 PLAYED SOME PART IN THE NON-SELECTION.  IN THE INSTANT MATTER, THE
 GENERAL COUNSEL HAS NOT MET THAT BURDEN.
 
    CONCERNING GEORGE COLE, THERE IS NO QUESTION THAT MANAGEMENT FELT HIM
 TECHNICALLY OUTSTANDING.  ITS CONCERN WAS WITH COLE'S ABRASIVE NATURE,
 HIS ABILITY TO GET ALONG WITH HIS IMMEDIATE SUPERVISOR DR. BELL, WHO
 WOULD HAVE CONTINUED TO BE HIS SUPERVISOR, AND THE DIFFICULTY IN GETTING
 HIM TO FOLLOW DIRECTIONS.  IN CONSIDERING COLE AGAINST THE STANDARDS
 WHICH DR. BELL HAD SET, AND TAKING INTO CONSIDERATION HIS PREVIOUS
 OUTSTANDING RATINGS FOR HIS WORK PERFORMANCE, /8/ DESPITE THE FACT THAT
 COLE WAS AN ACTIVE UNION ADHERENT, IT IS DIFFICULT TO AGREE WITH THE
 GENERAL COUNSEL THAT THE FAILURE TO SELECT COLE FOR ONE OF THE NOVEMBER
 POSITIONS STEMMED FROM A DESIRE TO RETALIATE AGAINST HIM FOR ANY
 GRIEVANCES WHICH HE HAD FILED OR FOR ANY OTHER PROTECTED ACTIVITY.  IN
 SHORT, THE FAILURE TO SELECT COLE IS SUPPORTED BY SUBSTANTIAL EVIDENCE.
 THERE IS CORROBORATED EVIDENCE OF RECORD THAT HE RESISTED DIRECTIVES AND
 AS TO HIS ABRASIVE NATURE, AS EVIDENCED BY HIS CONTACTS WITH THE
 INTERVIEW PANEL ON MATTERS UNRELATED TO PROTECT ACTIVITIES.  UNDER ALL
 THE CIRCUMSTANCES, RESPONDENT COULD WELL HAVE CONCLUDED, AS IT DID, THAT
 COLE ALTHOUGH WELL QUALIFIED TECHNICALLY, WAS NOT, AT THAT TIME,
 SUPERVISORY TIMBER.  THIS CONCLUSION IS BUTTRESSED BY THE FACT THAT COLE
 SUBSEQUENTLY WAS GIVEN AN ACTING SUPERVISORY POSITION, AND AFTER SEVERAL
 MONTHS OF SATISFACTORY PERFORMANCE IN THAT POSITION PROMOTED TO A BRANCH
 CHIEF POSITION IN OCTOBER 1979.
 
    TURNING TO ASKEW AND FLORES, RESPONDENT ARGUES THAT IN ITS VIEW THESE
 TWO EMPLOYEES WERE WEAKER, WHEN WEIGHED AGAINST ESTABLISH CRITERIA THAN
 ANY OTHER PERSON WHO APPLIED FOR THE SUPERVISORY POSITIONS.  /6/ THERE
 IS SUBSTANTIAL RECORD EVIDENCE CONCERNING THE WEAKNESS OF FLORES WHICH,
 IN MY VIEW, ARE CORROBORATED IN PART BY HIS IMMEDIATE SUPERVISOR
 MCCLURE.  IN SUM, MANAGEMENT FELT THAT FLORES HAD BELOW AVERAGE
 POTENTIAL FOR A SUPERVISORY JOB AND THERE IS NO REASON ON THIS RECORD TO
 DISCREDIT THAT POSITION.  FURTHERMORE, THERE IS NOT RECORD EVIDENCE OF
 ANIMUS DIRECTED AT FLORES BECAUSE OF HIS UNION PARTICIPATION.  IN SUCH
 CIRCUMSTANCES, IT WOULD NOT BE UNREASONABLE FOR MANAGEMENT TO REACH A
 CONCLUSION THAT FLORES SHOULD NOT BE SELECTED FOR A SUPERVISORY
 POSITION.
 
    ASKEW, ON THE OTHER HAND, RECEIVED BETTER THAN AVERAGE PERFORMANCE
 APPRAISALS BUT WAS CONSIDERED BY DR. BELL TO BE WEAK IN MOTIVATIONAL
 SKILLS, WRITING SKILLS, JOB KNOWLEDGE AND ABILITY TO TRAIN.  HIS CHIEF
 STRENGTH WAS IN INTERPERSONAL RELATIONS.  ALSO, DR.  BELL TESTIFIED THAT
 HE HAD A SUBSTANTIAL PROBLEM IN ONE OF ASKEW'S CASES WHICH REQUIRED HIS
 PERSONAL INTERVENTION IN ORDER TO SAVE THE OFFICE CONSIDERABLE
 EMBARRASSMENT.  WHILE ASKEW WAS THE UNION PRESIDENT AT THE TIME OF HIS
 NON-SELECTION, THE RECORD SHOWS THAT A PREVIOUSLY AGGRESSIVE UNION
 PRESIDENT HAD BEEN PROMOTED TO A MANAGEMENT POSITION ONLY A SHORT TIME
 BEFORE.  THIS FACT ALONE LEADS ONE TO BELIEVE THAT MANAGEMENT'S
 SELECTION WAS NOT INFLUENCED BY AN EMPLOYEE'S UNION PARTICIPATION.  IN
 VIEW OF DR. BELL'S APPRAISAL OF ASKEW, IT WOULD NOT HAVE BEEN ILLOGICAL
 FOR HIM TO PASS OVER ASKEW FOR SELECTION.
 
    ADMITTEDLY, DR. BELL HAD THE AUTHORITY TO MAKE SELECTIONS.  THERE IS
 NO RECORD EVIDENCE THAT HE DISCUSSED THE ATTRIBUTES OF COLE, FLORES,
 ASKEW WITH ANY OTHER OFFICIAL.  NOR DOES THE RECORD ESTABLISH ANY REASON
 TO DISCREDIT DR. BELL AS TO HIS BASIS FOR SELECTIONS AND HIS STATEMENT
 THAT UNION MEMBERSHIP WAS NOT A CONSIDERATION IN HIS SELECTIONS.  BASED
 ON ALL OF THE ABOVE, IT IS MY BELIEF THAT DR. BELL THE SELECTING
 OFFICIAL MUST BE CREDITED WHEN HE STATES THAT HE APPLIED A SPECIFIC SET
 OF CRITERIA TO EACH OF THE CANDIDATES AND THAT HIS SELECTIONS WERE BASED
 ON HIS PERSONAL KNOWLEDGE OF EACH OF THE INDIVIDUALS INVOLVED.  /10/
 WHILE THERE MAY BE SOME MISGIVINGS OR EVEN UNFAIRNESS IN THE METHOD OF
 SELECTION, I DO NOT FIND ON THIS RECORD THAT ANY ANTI-UNION SENTIMENTS
 OF DR. BELL PLAYED A PART IN HIS SELECTION OF INDIVIDUALS FOR THE
 NOVEMBER 1978 POSITIONS.
 
                            THE INTERVIEW PANEL
 
    ALTHOUGH THE QUESTION OF THE INTERVIEW PANEL WAS NOT ALLEGED
 SPECIFICALLY IN THE COMPLAINT THIS ISSUE WAS FULLY LITIGATED AT THE
 HEARING.  THERE IS NO QUESTION THAT THE REMARKS MADE BY THE INTERVIEW
 PANEL REGARDING EMPLOYEES UNION SYMPATHIES SUCH AS FLORES BEING A LABOR
 ADVOCATE;  COLE BEING AN EMPLOYEE ADVOCATE;  AND FLORES BEING EXTREMELY
 LABOR ORIENTED ARE VIOLATIVE OF SECTION 19(A)(1) OF THE ORDER, AND IT IS
 SO FOUND.  SUCH REMARKS ARE INHERENTLY DESTRUCTIVE OF SECTION 1(A)
 RIGHTS AND PROOF A SPECIFIC KNOWLEDGE IS NOT NECESSARY TO SUSTAIN A
 FINDING THAT SUCH CONDUCT IS VIOLATIVE OF THE ORDER.  U.S. DEPARTMENT OF
 HOUSING AND URBAN DEVELOPMENT, MILWAUKEE AREA OFFICE, MILWAUKEE,
 WISCONSIN, A/SLMR NO. 925.
 
    THE RECORD DEMONSTRATES THAT DR. BELL MADE HIS SELECTIONS WITHOUT
 BENEFIT OF THE INTERVIEW PANEL REMARKS OR WITHOUT KNOWLEDGE THAT SUCH
 REMARKS WERE CONTAINED IN THE INTERVIEW REPORT FORMS.  ALTHOUGH ORDERED
 TO MAKE THE PANEL REPORTS A PART OF THE SELECTION PROCESS DR. BELL
 RESISTED SUCH ORDERS FROM REGIONAL DIRECTOR STUCK FROM THE OUTSET.  I
 CREDIT DR. BELL'S TESTIMONY THAT HE FELT THE PANEL WAS A WASTE OF TIME,
 THAT HE HAD NO CONTACT WITH THE PANEL MEMBERS AND THAT IT "WAS STUCK'S
 PANEL." I AM THEREFORE CONVINCED THAT, THE INTERVIEW REPORT FORMS PLAYED
 NO PART IN THE SELECTION OF SUPERVISORS FOR THE FOUR POSITIONS BECAUSE
 OF DR. BELL'S OBDURATE POSITION ON THE PANEL'S USEFULNESS IN THESE
 SELECTIONS FROM THE OUTSET.
 
                              RECOMMENDATIONS
 
    HAVING FOUND THAT RESPONDENT DID NOT ENGAGE IN CONDUCT PROHIBITED BY
 SECTION 19(A)(2) OF THE EXECUTIVE ORDER, AS AMENDED, IT IS HEREBY
 RECOMMENDED THAT SUCH PORTIONS OF THE COMPLAINT BE DISMISSED IN THEIR
 ENTIRETY.  FURTHER, HAVING FOUND THAT RESPONDENT HAS ENGAGED IN CONDUCT
 PROHIBITED BY SECTION 19(A)(1) OF THE EXECUTIVE ORDER, AS AMENDED, THE
 FOLLOWING ORDER IS RECOMMENDED.
 
                             RECOMMENDED ORDER
 
    PURSUANT TO SECTION 2400.2 OF THE TRANSITION RULES AND REGULATION 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 HEALTH, EDUCATION AND WELFARE, OFFICE OF CIVIL
 RIGHTS, REGION VI, DALLAS, TEXAS.
 
    1.  CEASE AND DESIST FROM:
 
    (A) DISCOURAGING MEMBERSHIP IN A LABOR ORGANIZATION BY COMMENTING ON
 EMPLOYEE INTERVIEW REPORT FORMS REGARDING AN EMPLOYEES' UNION OR LABOR
 ORGANIZATION ACTIVITIES OR SYMPATHIES.
 
    (B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING OR
 COERCING EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY EXECUTIVE
 ORDER 11491, AS AMENDED.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTION:
 
    (A) REMOVE OR EXPUNGE FROM ITS INTERVIEW REPORT FORMS WRITTEN
 MATERIALS REGARDING UNION OR LABOR ORGANIZATION ACTIVITIES OR SYMPATHIES
 OF EMPLOYEES GEORGE COLE, HECTOR FLORES AND JAY ASKEW.
 
    (B) POST AT THE HEALTH, EDUCATION AND WELFARE, OFFICE OF CIVIL
 RIGHTS, REGION VI, DALLAS, TEXAS, 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 HEALTH, EDUCATION, AND WELFARE, OFFICE OF CIVIL RIGHTS,
 REGION VI, DALLAS, TEXAS, AND THEY 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 REGIONAL
 DIRECTOR 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.
 
    IT IS FURTHER ORDERED THAT THOSE PORTIONS OF THE COMPLAINT IN GENERAL
 COUNSEL CASES NOS. 6-CA-9, 6-CA-44, AND 6-CA-45 FOUND NOT TO BE
 VIOLATIVE OF THE EXECUTIVE ORDER BE, AND THEY HEREBY ARE DISMISSED.
 
                         ELI NASH, JR.
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  FEBRUARY 15, 1980
    WASHINGTON, D.C.
 
 
 
 
                                 APPENDIX
 
         NOTICE TO ALL EMPLOYEES PURSUANT TO 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 DISCOURAGE MEMBERSHIP IN A LABOR ORGANIZATION BY
 COMMENTING ON EMPLOYEE INTERVIEW REPORT FORMS REGARDING AN EMPLOYEES'
 UNION OR LABOR ORGANIZATION ACTIVITIES OR SYMPATHIES.
 
    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 REMOVE OR EXPUNGE FROM THE INTERVIEW REPORT FORMS ALL WRITTEN
 MATERIALS REGARDING UNION OR LABOR ORGANIZATION ACTIVITIES OF EMPLOYEES
 GEORGE COLE, HECTOR FLORES, AND JAY ASKEW.
 
                           (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 ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
 REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY;  WHOSE ADDRESS IS:
  DOWNTOWN POST OFFICE STATION, P.O. BOX 2640, DALLAS, TEXAS 75221, AND
 WHOSE TELEPHONE NUMBER IS (214) 767-4996.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ THE AUTHORITY NOTES THAT WITH THE ESTABLISHMENT OF THE DEPARTMENT
 OF EDUCATION, THE DEPARTMENT OF HEALTH, EDUCATION AND WELFARE WAS
 REDESIGNATED AS THE DEPARTMENT OF HEALTH AND HUMAN SERVICES.
 
    /2/ THE COMPLAINT IN CASE NO. 6-CA-51 WAS WITHDRAWN, WITH THE
 APPROVAL OF THE ADMINISTRATIVE LAW JUDGE, AT THE HEARING.
 
    /3/ THE PRESENT CASES ARE DECIDED SOLELY ON THE BASIS OF E.O.  11491,
 AS AMENDED, WHICH WAS