United States Department of Transportation, Federal Aviation Administration, Houston Air Traffic Control Center (Respondent) and Edward F. Dupaty (Charging Party)

 



[ v08 p486 ]
08:0486(100)CA
The decision of the Authority follows:


 8 FLRA No. 100
 
 UNITED STATES DEPARTMENT OF TRANSPORTATION
 FEDERAL AVIATION ADMINISTRATION
 HOUSTON AIR TRAFFIC CONTROL CENTER
 Respondent
 
 and
 
 EDWARD F. DUPATY
 Charging Party
 
                                            Case No. 6-CA-429
 
                            DECISION AND ORDER
 
    THE ADMINISTRATIVE LAW JUDGE ISSUED HIS DECISION AND ORDER IN THE
 ABOVE-ENTITLED PROCEEDING FINDING THAT THE RESPONDENT HAD NOT ENGAGED IN
 THE UNFAIR LABOR PRACTICES ALLEGED IN THE COMPLAINT, AND RECOMMENDING
 THAT THE COMPLAINT BE DISMISSED.  THEREAFTER, THE GENERAL COUNSEL FILED
 EXCEPTIONS TO THE JUDGE'S DECISION AND ORDER.
 
    PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
 (5 CFR 2423.29) AND SECTION 7118 OF THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE (THE STATUTE), THE AUTHORITY HAS REVIEWED THE RULINGS
 OF THE JUDGE MADE AT THE HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS
 COMMITTED.  THE RULINGS ARE HEREBY AFFIRMED.  UPON CONSIDERATION OF THE
 JUDGE'S DECISION AND ORDER AND THE ENTIRE RECORD IN CONCLUSIONS, AND
 RECOMMENDATIONS.
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 6-CA-429 BE, AND
 IT HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., MAY 7, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                      FEDERAL LABOR RELATIONS AUTHORITY
 
  
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
   SUSAN E. JELEN, ESQ.
                FOR THE GENERAL COUNSEL
 
   ROY G. VICK
                FOR THE RESPONDENT
 
   FRANK JUAREZ
               FOR THE CHARGING PARTY
 
   BEFORE:  JOHN H. FENTON
            CHIEF ADMINISTRATIVE LAW JUDGE
 
                                 DECISION
 
                           STATEMENT OF THE CASE
 
    THIS CASE AROSE PURSUANT TO THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE, 92 STAT. 1191, 5 U.S.C. 7101 ET SEQ., AS A RESULT OF
 AN UNFAIR LABOR PRACTICE COMPLAINT FILED ON APRIL 30, 1980, BY THE
 REGIONAL DIRECTOR, REGION 6, FEDERAL LABOR RELATIONS AUTHORITY.  THE
 COMPLAINT ALLEGED THAT RESPONDENT, THROUGH SUPERVISORY AIR TRAFFIC
 CONTROL SPECIALIST DAVID FRAME, VIOLATED SECTION 7116(A)(1) AND (2) BY
 ISSUING A LETTER OF REPRIMAND TO THE CHARGING PARTY, BY MAKING
 DEROGATORY REMARKS ABOUT HIS PERFORMANCE OF DUTIES IN CONNECTION WITH AN
 INCIDENT HE REPORTED AS CONSTITUTING AN UNSATISFACTORY CONDITION, AND BY
 MAKING DEROGATORY REMARKS IN HIS ANNUAL PERFORMANCE EVALUATION, ALL
 BECAUSE OF HIS MEMBERSHIP IN AND ACTIVITIES ON BEHALF OF, THE
 PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION.
 
    A HEARING WAS HELD ON JULY 29, 1980 IN HOUSTON, TEXAS.  ALL PARTIES
 WERE AFFORDED FULL OPPORTUNITY TO BE HEARD, TO EXAMINE AND CROSS-EXAMINE
 WITNESSES AND TO INTRODUCE EVIDENCE.  UPON THE ENTIRE RECORD, INCLUDING
 MY OBSERVATION OF THE WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING
 FINDINGS OF FACT, CONCLUSIONS OF LAW, AND RECOMMENDATIONS.
 
                             FINDINGS OF FACT
 
    1.  PRELIMINARILY IT SHOULD BE NOTED THAT WHILE THE COMPLAINT
 ATTRIBUTED THE ACTIONS TAKEN AGAINST MR. EDWARD F. DUPATY TO HIS
 "MEMBERSHIP IN, AND ACTIVITIES ON BEHALF OF" THE PROFESSIONAL AIR
 TRAFFIC CONTROLLERS ORGANIZATION (PATCO), THE ALLEGATIONS WERE MORE
 SPECIFICALLY GROUNDED UPON DUPATY'S PERSISTENT INVOCATION OF A CONTRACT
 CLAUSE (ARTICLE 55) AND ON HIS FILING OF PERSISTENT INVOCATION OF A
 CONTRACT CLAUSE (ARTICLE 55) AND ON HIS FILING OF UNSATISFACTORY
 CONDITION REPORTS (UCRS) IN WHICH HE DESCRIBED WHAT HE PERCEIVED TO BE
 DANGEROUS CONDITIONS IN THE ROUTING OF AIR TRAFFIC.  BOTH SUCH
 ACTIVITIES ARE ASSERTED TO CONSTITUTE SPECIES OF PROTECTED UNION
 ACTIVITY BECAUSE, IN THE FIRST INSTANCE IT ARISES FORM PROVISIONS OF THE
 COLLECTIVE BARGAINING CONTRACT, AND IN THE SECOND INSTANCE, IT HAS TO DO
 WITH SAFETY AND IS ACTION WHICH INURES TO THE BENEFIT OF ALL UNIT
 EMPLOYEES.  THUS WE ARE NOT CONCERNED HERE WITH TRADITIONAL
 CONSIDERATIONS OF UNION MEMBERSHIP AND ACTIVITY, THERE BEING NO
 CONTENTION THAT DUPATY WOULD HAVE BEEN TREATED DIFFERENTLY HAD HE NOT
 BEEN A MEMBER.  /1/
 
    2.  DUPATY IS A GS-14 AIR TRAFFIC CONTROL SPECIALIST (ATCS), AND HAS
 ENGAGED IN SUCH WORK SINCE 1968.  PRIOR TO THAT HE SERVED AS A
 CONTROLLER FOR THE U.S. AIR FORCE FOR TWO YEARS.  THE HOUSTON AIR
 TRAFFIC CONTROL CENTER IS DIVIDED INTO SPECIALTIES COVERING NEW ORLEANS,
 HOUSTON, LAREDO AND SAN ANTONIO.  EACH SPECIALTY IS DIVIDED INTO SECTORS
 (SEGMENTS OF AIR SPACE), AND HOUSTON, TO WHICH DUPATY IS ASSIGNED, IS
 DIVIDED INTO SIX (SOMETIMES EIGHT) SECTORS.  EACH SECTOR, A LEAST
 POTENTIALLY, IS MANNED BY THREE PERSONS, A RADAR CONTROLLER, A MANUAL
 CONTROLLER AND AN ASSISTANT CONTROLLER.  DEPENDING UPON TRAFFIC, WEATHER
 AND OTHER FACTORS, SECTORS ARE SOMETIMES MERGED AND, MORE COMMONLY,
 POSITIONS ARE COMBINED.  THUS A SECTOR EXPERIENCING LIGHT TRAFFIC UNDER
 GOOD FLYING CONDITIONS MIGHT BE HANDLED BY ONE CONTROLLER, WITH OR
 WITHOUT AN ASSISTANT.  A PRINCIPAL FUNCTION OF THE ASSISTANT IS TO TEAR
 STRIPS CONTAINING FLIGHT INFORMATION AS THEY COME OFF A PRINTER.
 
    3.  DUPATY'S PROBLEMS AT THE HOUSTON CENTER BEGAN IN MARCH OF 1979,
 WHICH ROUGHLY COINCIDED WITH THE ARRIVAL OF DAVID FRAME AS SUPERVISOR OF
 HIS CREW.  THE PERFORMANCE EVALUATION COVERING DUPATY'S WORK FOR ANOTHER
 SUPERVISOR FOR THE PERIOD FROM FEBRUARY 1978 TO FEBRUARY 1979 STATES
 THAT HE WAS AN EXCELLENT CONTROLLER.  WHILE THE OVERALL RATING WAS
 MERELY SATISFACTORY, AS OPPOSED TO OUTSTANDING (THERE BEING NO PROVISION
 FOR SUPERIOR), THE HIGHEST ASSESSMENT BOXES WERE CHECKED IN 5 AND 11
 CATEGORIES OF PERFORMANCE.  FROM ABOUT FEBRUARY THROUGH AUGUST OF 1979,
 DUPATY WAS ASSIGNED THE JOB OF TRAINING TONY SANCHEZ.  /2/ HE ASSERTS
 THAT HE WAS NOT SIMULTANEOUSLY ABLE TO STAY "CURRENT" IN A NUMBER OF
 POSITIONS, I.E., THAT HE DID NOT WORK THEM ENOUGH TO STAY SUFFICIENTLY
 FAMILIAR WITH THE JOB REQUIREMENTS, AND THAT THE RESULTING INSECURITY
 WHEN FILLING SUCH POSITIONS LED HIM TO INVOKE ARTICLE 55, AND HENCE INTO
 CONFLICT WITH SUPERVISOR FRAME.
 
    4.  ARTICLE 55 OF THE COLLECTIVE BARGAINING AGREEMENT IS ENTITLED
 "CONTROLLERS PERFORMANCE." SECTION 1 PROVIDES:
 
    IN THE EVENT OF A DIFFERENCE OF PROFESSIONAL OPINION BETWEEN THE
 EMPLOYEE AND THE
 
    SUPERVISOR, THE EMPLOYEE SHALL COMPLY WITH THE INSTRUCTIONS OF THE
 SUPERVISOR AND THE
 
    SUPERVISOR SHALL ASSUME RESPONSIBILITY FOR HIS OWN DECISIONS.
 
    IN ABOUT MARCH, DUPATY BEGAN TO INVOKE ARTICLE 55 WHENEVER ASSIGNED
 MULTIPLE POSITIONS OR ANY POSITION HE CONSIDERED UNSAFE FOR ANY REASON.
 BECAUSE HE WAS PUT ON A SHIFT WITH RATHER LIGHT TRAFFIC, WHERE POSITIONS
 WERE FREQUENTLY COMBINED, INVOCATION BECAME A ROUTINE, ALMOST DAILY
 THING, AND WAS CONTINUING UP TO THE DATE OF THE HEARING.  /3/ IT WAS
 ACCOMPLISHED BY SIMPLY TELLING THE SUPERVISOR AND MAKING A NOTATION IN
 THE WORKLOG.  DISCUSSIONS ENSUED AT UNKNOWN TIMES, BETWEEN DUPATY AND
 FRAME CONCERNING THE MEANING AND PURPOSE OF ARTICLE 55.  ACCORDING TO
 DUPATY, FRAME TOLD HIM THAT HE DID NOT SEE WHERE HE WAS JUSTIFIED IN
 INVOKING ARTICLE 55 IN SUCH CIRCUMSTANCES, THAT FRAME DID NOT AGREE THAT
 DUPATY WAS RELIEVED ON RESPONSIBILITY FOR HIS PERFORMANCE IN "PROTESTED"
 COMBINED POSITIONS.  DUPATY TESTIFIED THAT HE BELIEVED THAT INVOKING
 ARTICLE 55 WOULD "RELIEVE THE RESPONSIBILITY OFF MY SHOULDERS AND PUT IT
 ON THE SUPERVISOR'S SHOULDERS FOR THE DECISION HE HAD MADE." A LATER
 GRIEVANCE, APPARENTLY FILED IN JULY, INDICATES THAT, IN DUPATY'S VIEW,
 ASSIGNMENT TO A COMBINED POSITION VIOLATED ARTICLE 55 (GENERAL COUNSEL'S
 EXHIBIT 6).  IT IS CLEAR FROM FRAME'S TESTIMONY THAT HE INTERPRETED
 ARTICLE 55 AS APPLYING TO AN ACTIVE AIR TRAFFIC CONTROL SITUATION, WHERE
 SUPERVISOR AND SUBORDINATE DISAGREE ABOUT HOW TO ROUTE PARTICULAR
 TRAFFIC, AND NOT APPLYING TO ONE'S RESPONSIBILITY FOR AN ENTIRE SECTOR
 OVER AN ENTIRE SHIFT.  THUS, HE WAS OF THE VIEW THAT DUPATY WAS
 ABDICATING RESPONSIBILITY FOR PROPER AIR TRAFFIC MANAGEMENT BECAUSE HE
 DISAGREED WITH FRAME'S DECISIONS REGARDING APPROPRIATE DEPLOYMENT OF THE
 AVAILABLE AIR TRAFFIC CONTROL SPECIALISTS.  NO ARBITRATION DECISIONS OR
 OTHER MATERIALS THROWING LIGHT ON THE MEANING OF ARTICLE 55 WERE
 SUBMITTED.
 
    5.  IT IS NOT CLEAR WHEN DISCUSSIONS ABOUT DUPATY'S UNWILLINGNESS TO
 HANDLE COMBINED POSITIONS OR MULTIPLE SECTORS AROSE.  HOWEVER, A RATHER
 FORMAL DISCUSSION, MEMORIALIZED IN A MEMORANDUM, TOOK PLACE ON MAY 9,
 1979.  ACCORDING TO DUPATY, FRAME CALLED HIM IN AN ASKED WHAT HIS
 PROBLEM WAS, AN INQUIRY WHICH DUPATY "IMAGINED" WAS A REFERENCE TO
 ARTICLE 55.  DUPATY TESTIFIED THAT THERE FOLLOWED A DISCUSSION ABOUT HIS
 FEELINGS WITH RESPECT TO SAFETY:  THAT HE WAS NOT CURRENT IN SECTORS
 THAT FRAME WANTED HIM TO WORK, THAT HE DID NOT FEEL IT WAS SAFE TO WORK
 COMBINED POSITIONS AND THAT IT WAS ALSO UNSAFE TO WORK MULTIPLE SECTORS.
  THE MEETING ENDED, HE ASSERTED, WITH FRAME'S STATEMENT THAT HE COULD
 GET INTO TROUBLE IF HE CONTINUED TO OPERATE IN THAT MANNER, AND HIS
 RESPONSE THAT THAT WAS THE WAY IT HAD TO WORK.  ACCORDING TO FRAME, THE
 DISCUSSION OR COUNSELING OCCURRED AFTER DUPATY REFUSED TO WORK A
 COMBINED POSITION ON THE GROUND THAT HIS POSITION DESCRIPTION DID NOT
 REQUIRE HIM TO WORK MORE THAN ONE POSITION AT A TIME.  THE POSITION
 DESCRIPTION WAS REVIEWED, AND DUPATY WAS INFORMED THAT HE WOULD BE
 REQUIRED TO WORK COMBINED POSITIONS WHENEVER NECESSARY.  HE ALSO GAVE
 DUPATY A COPY OF THE CONDUCT AND DISCIPLINE SECTION OF THE SUPERVISOR'S
 HANDBOOK, REVIEWED WITH HIM THAT PART HAVING TO DO WITH FAILURE TO
 FOLLOW ORDERS, AND TOLD HIM THAT ANY REFUSAL TO PROMPTLY ASSUME A
 COMBINED POSITION WOULD BE DEEMED A FAILURE TO CARRY OUT A DIRECT ORDER.
  DUPATY RESPONDED THAT HE WOULD ONLY WORK A COMBINED POSITION WHEN GIVEN
 A DIRECT ORDER, AND WOULD INVOKE ARTICLE 55 WHENEVER TOLD TO DO SO.
 WHILE I REGARD BOTH DUPATY AND FRAME AS TRUTHFUL, I AM PERSUADED THAT
 FRAME, ARMED WITH A CONTEMPORANEOUS MEMORANDUM OF THE EVENT, HAS THE
 MORE ACCURATE RECOLLECTION.  THUS, I FIND THAT THE DISCUSSION WAS
 PRECIPITATED NOT BY A MERE INVOCATION OF ARTICLE 55, BUT BY DUPATY'S
 REFUSAL TO ACCEPT A COMBINED POSITION ASSIGNMENT ON THE GROUND THAT HE
 COULD NOT BE REQUIRED TO ACCEPT IT.
 
    6.  ON JUNE 19, 1979, FRAME DIRECTED DUPATY TO WORK A MANUAL
 CONTROLLER POSITION.  ACCORDING TO FRAME, DUPATY REFUSED ON THE GROUND
 THAT THERE WAS NO ASSISTANT CONTROLLER TO HELP WITH THE PULLING OF THE
 FLIGHT STRIPS FROM THE PRINTER.  FRAME ASSISTED, PULLING THE STRIPS FOR
 DUPATY UNTIL REQUIRED TO LEAVE THAT POSITION, AT WHICH TIME HE ORDERED
 DUPATY TO PULL THE STRIPS, AND ACCUSED DUPATY OF FAILING TO DO SO.  IT
 IS, FRANKLY, UNCLEAR WHETHER DUPATY IN FACT REFUSED SUCH ORDERS OR
 SIMPLY DELAYED COMPLIANCE WHILE MAKING THE PROTEST THAT HE WAS NOT
 ASSISTED, FOR PURPOSES OF LAYING THE FOUNDATION FOR INVOKING ARTICLE 55.
  AS WILL BECOME APPARENT, DELAY IN THE CONTROL ROOM, WHERE TIME'S IS
 SURELY OF THE ESSENCE, IS CONSIDERED A REFUSAL.  ACCORDING TO DUPATY,
 HIS TROUBLES ON THIS OCCASION STEMMED FORM HIS INVOKING ARTICLE 55 AND
 ALSO FROM THE MANNER IN WHICH HE WOULD RELIEVE CONTROLLERS ON THE BREAK
 LIST.  THUS, HE DENIES THAT FAILED TO TEAR THE STRIPS WHEN ORDERED TO DO
 SO BY FRAME.  HOWEVER, HE ADMITS THAT HE APPROACHED THE BREAK LIST IN A
 MANNER WHICH WOULD APPEAR TO BE INSUBORDINATE, ALTHOUGH HE PROFESSED NOT
 TO "KNOW HOW THE LIST WAS SUPPOSED TO RUN." THUS A LIST WAS KEPT FOR
 PURPOSES OF COFFEE BREAKS.  A CONTROLLER RETURNING FORM BREAK WOULD SIGN
 HIS NAME AT THE BOTTOM, SCRATCH OFF THE NAME AT THE TOP, AND RELIEVE
 THAT PERSON.  OUT OF APPARENT IGNORANCE BECAUSE NEW TO THE BREAK LIST,
 DUPATY WOULD SKIP THE FIRST PERSON IF THAT CONTROLLER WAS MANNING A
 POSITION IN WHICH HE WAS NOT CURRENT, OR WAS MANNING COMBINED POSITIONS.
  HE WOULD SIMPLY SKIP THE NAMES OF SUCH CONTROLLERS, AND RELIEVE THE
 FIRST PERSON OCCUPYING A SINGLE POSITION IN WHICH HE FELT CURRENT.  A
 COUNSELING SESSION WITH FRAME OCCURRED ON THE NEXT DAY, WITH UNION
 REPRESENTATIVE RAMIREZ PRESENT.  THE TWO INCIDENTS WERE DISCUSSED AND,
 ACCORDING TO DUPATY, HE WAS WARNED THAT DISCIPLINARY ACTION WOULD RESULT
 FROM HIS "METHODS OF OPERATION," I.E., NOT RELIEVING THE FIRST-NAMED
 CONTROLLER.  HE WAS ADVISED THAT THE INSTRUCTION TO RELIEVE THE POSITION
 AT THE TOP OF THE LIST WAS A DIRECT ORDER, AND HE SUBSEQUENTLY COMPLIED.
  ODDLY, RESPONDENT DID NOT MENTION THIS INSTANCE OF WHAT WAS, ARGUABLY,
 INSUBORDINATION.  RATHER, IT LIMITS THE DISCUSSION OF JUNE 20 TO
 DUPATY'S FAILURE TO PROMPTLY CARRY OUT AN ORDER TO TEAR STRIPS,
 INDICATES THAT HE DEFENDED ON THE GROUND THAT HE PERFORMED SUCH DUTIES
 IN A TIMELY MANNER, AND STATES THAT HE WAS TOLD THAT FAILURE CARRY OUT
 AN ORDER WOULD RESULT IN DISCIPLINE.  ALTHOUGH RESPONDENT DOES NOT RELY
 UPON THE INCIDENT CONCERNING THE BREAK LIST, I INCLUDE IT IN THIS
 DISCUSSION, AS IT WAS VOLUNTEERED BY DUPATY AND IT DOES THROW LIGHT ON
 HIS DISPOSITION TOWARD HIS WORK.  HE HAD BEEN ADVISED IN MAY THAT HE
 WOULD BE REQUIRED TO MAN COMBINED POSITIONS, AND THAT HIS FAILURE TO
 PROMPTLY ASSUME ONE WHEN ORDERED TO DO SO WOULD CONSTITUTE
 INSUBORDINATION.  HE WAS ALSO RATHER POINTEDLY FAMILIARIZED WITH THE
 DISCIPLINE PROVISIONS OF THE SUPERVISOR'S MANUAL.  IN SUCH CIRCUMSTANCES
 IT IS, AT A MINIMUM, PUZZLING THAT ONE WITH THE INTELLIGENCE ASSOCIATED
 WITH A GS-14 POSITION WOULD ASSUME THAT HE WAS FREE TO SKIP OVER THOSE
 AT THE TOP OF A RELIEF LIST UNTIL HE FOUND ONE OCCUPYING A NONCOMBINED
 AND THUS ACCEPTABLE POSITION.  HIS FAILURE TO AT LEAST FIRST INQUIRE
 ABOUT THE LEGITIMACY OF SUCH A PRACTICE STRONGLY SUGGESTS THE MINDSET OF
 AN EMPLOYEE PRONE TO TAILOR HIS TERMS AND CONDITIONS OF EMPLOYMENT TO
 HIS DESIRES.
 
    7.  ON JUNE 20, DUPATY FILED AN UNSATISFACTORY CONDITION REPORT
 (UCR).  THERE IS NO EVIDENCE WHETHER THIS OCCURRED BEFORE OR AFTER THE
 COUNSELING SESSION.  A UCR IS FILED ON AN FAA FORM, PURSUANT TO FAA
 REGULATIONS.  AS THE NAME SUGGESTS, IT IS USED TO REPORT UNSATISFACTORY
 CONDITIONS (OFTEN UNSAFE).  A COPY IS PROMPTLY SENT TO THE NATIONAL
 HEADQUARTERS, AND LOCAL MANAGEMENT IS REQUIRED TO INVESTIGATE AND REPORT
 UPON THE MATTER.  THE COLLECTIVE BARGAINING AGREEMENT IS SILENT ON THE
 MATTER, AND THERE IS NO SUGGESTION THAT THE UNION IS IN ANY WAY INVOLVED
 IN THAT PROGRAM.
 
    THE UCR IN ESSENCE REPORTED THAT THE HOUSTON SPECIALITY (TO WHICH
 DUPATY WAS ASSIGNED) WAS UNDERSTAFFED, THAT CONTROLLERS HAD TO WORK
 COMBINED POSITIONS - THUS SPREADING THEIR SPAN OF ATTENTION -, AND THAT
 LOCAL MANAGEMENT, INCLUDING THE CENTER CHIEF, HAD BEEN ADVISED OF THIS
 DANGEROUS PROBLEM TO NO AVAIL.  MANAGEMENT RESPONDED THAT THE STAFF WAS
 ADEQUATE, THAT THE USE OF COMBINED POSITIONS WAS GENERALLY AT THE
 REQUEST OF THE CONTROLLERS, FOR WHOM IT PERMITTED MORE LIBERAL BREAK
 TIME, AND THAT MATCHING THE AVAILABLE PERSONNEL TO THE WORKLOAD DID NOT
 CREATE A DANGEROUS CONDITION.
 
    8.  ON JULY 21, DUPATY WAS INVOLVED IN AN INCIDENT WHICH LED TO HIS
 BEING CITED FOR INSUBORDINATION.  HE CAME OFF A BREAK AND FOUND GADDIE
 (WHO WAS WORKING WITH A TRAINEE) NEXT ON THE LIST.  GADDIE TOLD HIM IT
 WAS A NICE SECTOR.  DUPATY REPLIED THAT IT WAS NOT, WITHOUT AN ASSISTANT
 CONTROLLER.  GADDIE TOLD HIM THAT THAT WAS BETWEEN HIM AND HIS SUPERIOR.
  DUPATY SAID, "OK, WAIT A MINUTE," CALLED SUPERVISOR JACK STACY, AND
 INQUIRED WHETHER HE WOULD HAVE AN ASSISTANT CONTROLLER TO HELP HIM.
 STACY RELIED THAT HE WOULD TEAR THE STRIPS, BUT THAT IF HE WAS UNABLE TO
 TAKE UP THE SLACK, THE BURDEN WOULD BE ON DUPATY TO DO SO.  STACY WAS
 WALKING AWAY AS HE UTTERED THESE WORDS, AND DUPATY CALLED HIM BACK AND
 REPEATED HIS QUESTION WHETHER HE WAS GOING TO HAVE AN ASSISTANT OR HAD
 TO HANDLE BOTH JOBS.  STACY RESPONDED BY ASKING DUPATY WHETHER HE WAS
 GOING TO PLUG IN (AS THE POSITION WAS NOW VACANT), AND DUPATY SAID HE
 WOULD NOT DO SO WITHOUT A BRIEFING.  GADDIE WAS THEN CALLED BACK AND
 PLUGGED IN WHILE DUPATY CONTINUED TO INQUIRE OF STACY WHETHER HE WAS TO
 HAVE AN ASSISTANT.  STACY TOLD HIM TO RELIEVE GADDIE AND THEN HE WOULD
 LET DUPATY KNOW.  /4/ DUPATY THEN ASKED WHETHER STACY'S WORDS WERE A
 DIRECT ORDER.  STACY SAID THEY WERE AND DUPATY PLUGGED IN, RECEIVED HIS
 BRIEFING, FOUND IT TOO FAST, HE SAID, TO BE FULLY ABSORBED, AND RECEIVED
 A SECOND BRIEFING.  NEEDLESS TO SAY, EVEN A BRIEF INTERRUPTION IN THE
 COVERAGE OF AIR TRAFFIC CONSTITUTES AN UNDESIRABLE CONDITION.
 
    THAT EVENING A MEETING OCCURRED DEVOTED TO THIS INCIDENT.  ASSISTANT
 CHIEF BERMOND CROCKER, SUPERVISOR STACY, DUPATY AND PATCO PRESIDENT
 JUAREZ WERE PRESENT.  CROCKER ANNOUNCED THE PURPOSE OF THE MEETING WAS
 TO DISCUSS PROPOSED DISCIPLINARY ACTION BASED ON DUPATY'S REFUSAL TO
 OBEY AN ORDER.  DUPATY RESPONDED THAT HE DID NOT UNDERSTAND THAT STACY
 HAD COMMUNICATED A DIRECT ORDER, AND THAT WHEN HE DID, HE OBEYED.  IT
 APPEARS THAT HE DID NOT REGARD A SUPERVISOR'S INSTRUCTION AS AN ORDER,
 ABSENT THE USE OF THAT WORD.  ACCORDING TO JUAREZ, THE FLAT CHARGE OF
 INSUBORDINATION WAS MODIFIED TO A FAILURE "PROMPTLY TO COMPLY." THE TWO
 OF THREE MINUTES DELAY IN ASSUMING THE POSITION WAS, HE SAID, CAUSED BY
 DUPATY'S NEED TO KNOW WHETHER HE WAS BEING REQUIRED TO ASSUME COMBINED
 POSITION, FOR PURPOSES OF DETERMINING WHETHER HE SHOULD INVOKE ARTICLE
 55.  THERE IS NO EVIDENCE THAT ARTICLE 55 WAS, IN FACT, MENTIONED DURING
 THE INCIDENT.  ON AUGUST 25, DUPATY RECEIVED AN OFFICIAL REPRIMAND FOR
 INSUBORDINATION FROM SUPERVISOR FRAME, BASED ON THE JULY 29 INCIDENT AS
 WELL AS THE MATTERS THAT LED TO THE COUNSELING SESSIONS ON MAY 9 AND
 JUNE 19 (RESPONDENT EXHIBIT 1).
 
    9.  ON AUGUST 13, DUPATY WAS CONTROLLING CERTAIN MILITARY TRAFFIC
 WHICH, BECAUSE OF WEATHER, WAS DIVERTED TO HIS SECTOR.  BEFORE LONG
 THREE PILOTS HAD DECLARED EMERGENCIES ON THE GROUND THEY WERE RUNNING
 SHORT OF FUEL WHILE AWAITING CLEARANCE TO LAND.  NOTWITHSTANDING HIS
 PROFESSION OF THE SERIOUSNESS OF THIS EMERGENCY, DUPATY DID NOT FILE A
 UCR UNTIL SEPTEMBER 9, WHEN 28 OF THE ALLOWED 30 DAYS HAD ALREADY
 ELAPSED.  IN THE UCR (GENERAL COUNSEL EXHIBIT 7) HE REPORTED THAT THE
 MILITARY AIRCRAFT HAD NOT FILED ALTERNATE FLIGHT PLANS, AND THAT THREE
 OF THE PILOTS HAD DECLARED EMERGENCIES "FOR LACK OF EXPEDITIOUS
 HANDLING." THE MATTER WAS INVESTIGATED BY TEAM SUPERVISOR FRAME, WHO WAS
 ABSENT ON THE DAY OF THE INCIDENT.  THE TAPES OF CONTROLLER-PILOT
 DISCUSSIONS HAD BY THEM ALLEGEDLY BEEN DESTROYED.  AFTER DISCUSSIONS
 WITH THE TEAM SUPERVISOR, OTHER TEAM MEMBERS AND THE ASSISTANT CHIEF,
 FRAME FILED HIS REPORT.  HE CONCLUDED THAT THE PROBLEMS OF THAT DAY WERE
 CREATED "IN MOST PART" BY THE FAILURE OF THE INVOLVED CONTROLLERS TO
 HANDLE THE MATTER IN "AN EXPEDITIOUS AND PROFESSIONAL MANNER." THIS
 REPORT WAS FILED ON SEPTEMBER 20, AND ON OCTOBER 5, THE HOUSTON CENTER
 CHIEF, CONCLUDED THAT AN "UNSAFE CONDITION MAY HAVE RESULTED FROM THE
 INVOLVED CONTROLLERS' /5/ ACTION OR LACK OF ACTION," AND OBSERVED THAT
 WHILE THE TEAM SUPERVISOR DID NOT FEEL REMEDIAL TRAINING WAS NECESSARY,
 HE FELT CLOSE SUPERVISION WAS.  A COPY OF THIS SHOULD HAVE BEEN PROVIDED
 TO DUPATY.  DUE TO THE ALLEGED FORGETFULNESS, HE RECEIVED ONE UPON
 REQUEST ON JANUARY 19, 1980.  DUPATY THEREUPON FILED A NEW UCR, STATING
 THAT THE HAZARDOUS SITUATION HAD NOT BEEN CORRECTED.  HE NOTED THAT THE
 REPLY TO HIS ORIGINAL UCR WAS THE "CLEAR RESULT OF INEFFICIENT
 INVESTIGATION (AN I DON'T GIVE A DAMN ATTITUDE) WHICH IS PROMOTING THE
 CONTINUANCE OF PROCEDURES THAT CAUSE HAZARDOUS SITUATIONS" AND THAT HE
 "DID NOT APPRECIATE NOR ACCEPT THE REPLY." MANAGEMENT AGAIN DISAGREED,
 FINDING NO PROCEDURAL DEFICIENCIES IN THE HANDLING OF MILITARY TRAFFIC.
 
    10.  DURING THE TIME THAT THE SEPTEMBER UCR WAS UNDER INVESTIGATION
 AND REVIEW, THERE WERE ONGOING DISCUSSIONS ABOUT THE RESOLUTION OF THE
 REPRIMAND.  BY ITS TERMS DUPATY HAD 20 DAYS FROM ITS RECEIPT ON AUGUST
 25 TO SUBMIT HIS REPLY.  FAILURE TO REPLY IN THIS TIME FRAME LED TO
 AUTOMATIC PLACEMENT OF THE REPRIMAND IN HIS OFFICIAL PERSONNEL FILE.  IF
 A REPLY WAS ENTERED, AND THE SUPERVISOR DECIDED NEVERTHELESS TO SUSTAIN
 THE REPRIMAND, DUPATY COULD FILE A GRIEVANCE AT STEP 2 OF THE CONTRACT'S
 GRIEVANCE PROCEDURE.  DUPATY, UNION PRESIDENT JUAREZ AND UNION
 REPRESENTATIVE MATHEWS ON SEPTEMBER 17, ORALLY PRESENTED A GRIEVANCE TO
 FRAME, WHO REJECTED IT ON THE GROUND IT WAS UNTIMELY AND DID NOT COMPLY
 WITH THE PROCEDURAL INSTRUCTIONS IN THE REPRIMAND LETTER.  MEETINGS
 NEVERTHELESS FOLLOWED FOR THE PURPOSE OF DISCUSSING REMOVAL OF THE
 REPRIMAND.  ON OCTOBER 1, THERE WAS A GENERAL AGREEMENT TO "WIPE THE
 SLATE CLEAN," I.E., TO REMOVE THE LETTER, IF THAT COULD BE DONE, UPON
 DUPATY'S PROMISE TO WORK AS HE ONCE HAD.  IT IS CLEAR THAT THESE
 DISCUSSIONS INCLUDED TALK ABOUT ARTICLE 55.  THUS JUAREZ TESTIFIED THAT
 AN AGREEMENT WAS REACHED WHICH WOULD ENABLE DUPATY AND AND FRAME TO
 OPERATE WITHOUT CONFLICT:  DUPATY WOULD INVOKE ARTICLE 55 AND FRAME
 "WOULD LET HIM WITHOUT . . . I BELIEVE AT THIS POINT DURING THE
 DISCUSSIONS, THE FACT THAT ED SAID HE WAS INVOKING ARTICLE 55 BECAUSE IT
 WAS A DANGEROUS SITUATION SEEMED TO IRRITATE MR. FRAME." FRAME
 ACKNOWLEDGED THAT THERE WAS TALK OF ARTICLE 55, THAT HE AGREED TO ACCEPT
 INVOCATION OF ARTICLE 55 - SOMETHING HE BELIEVED HE HAD TO DO ANYWAY.
 HE DENIED THAT HE HAD REJECTED ATTEMPTS TO INVOKE ARTICLE 55, STATING
 THAT HE HAD, HOWEVER, DISPUTED WHETHER ARTICLE 55 COULD PROPERLY BE
 INVOKED UNDER THE CONTRACT RESPECTING THE SUBJECT MATTER RAISED BY
 DUPATY.  WHILE ALL OF THIS TESTIMONY IS MOST IMPRECISE, RESPONDENT'S
 EXHIBIT NO. 13 MAKES IT CLEAR THAT ARTICLE 55 WAS A STUMBLING BLOCK.
 FRAME DID NOT QUARREL WITH USE OF THE ARTICLE, BUT INSISTED DUPATY MUST
 HAVE A VALID REASON (RESPONDENT EXHIBIT NO. 13).  THIS CLEARLY RELATES
 TO A CONTINUING DISPUTE OVER WHETHER THAT ARTICLE APPLIED TO SITUATIONS
 OF ALLEGED UNDERSTAFFING, OR ONLY TO "LIVE" TRAFFIC MANAGEMENT, WHERE
 SUPERVISOR AND SUBORDINATE DISAGREE AS TO HOW IT SHOULD BE HANDLED.
 THERE IS ALSO A CLEAR SUGGESTION THAT THE TWO HAD QUARRELED OVER THE
 QUESTION WHETHER, AND IN WHAT SENSE, A CONTROLLER IS RELIEVED OF
 RESPONSIBILITY FOR HIS JOB PERFORMANCE AFTER PROTESTING ASSIGNMENT TO A
 COMBINED POSITION.  AS NOTED, DUPATY APPEARED TO BELIEVE SUCH AN
 ASSIGNMENT WAS ITSELF VIOLATIVE OF ARTICLE 55 (GENERAL COUNSEL'S EXHIBIT
 NO. 6).  AT THE LAST SUCH MEETING, ON OCTOBER 6, THEY AGREED TO ATTEMPT
 TO WORK TOGETHER WITHOUT CONFLICT, AND FRAME AGREED TO TRY TO HAVE THE
 REPRIMAND REMOVED FROM DUPATY'S FILE.  DUPATY FILED AN UNDESCRIBED EEO
 COMPLAINT, WHICH HE SAID "WENT FORMAL" IN NOVEMBER, AND AS A CONSEQUENCE
 OF WHICH HE LEARNED THAT THE REPRIMAND HAD BEEN REMOVED ON ABOUT
 DECEMBER 14.  HE THEREUPON WITHDREW HIS EEO COMPLAINT "WITH
 RESERVATIONS." ACTUAL REMOVAL OF THE REPRIMAND WAS ACCOMPLISHED BY A
 LETTER DATED NOVEMBER 29 FROM HOUSTON CENTER CHIEF PRICE TO THE CHIEF OF
 THE EMPLOYMENT BRANCH, FAA SOUTHWEST REGION IN FORT WORTH.
 
    11.  ON JANUARY 27, 1980, DUPATY AND FRAME DISCUSSED HIS ANNUAL
 PERFORMANCE RATING (RESPONDENT'S EXHIBIT NO. 16).  THE RATING WAS
 "SATISFACTORY." OF SIX "MAJOR JOB ASSIGNMENTS" DUPATY RECEIVED FOUR
 "EXCEEDS REQUIREMENTS" AND TWO "FAR EXCEEDS REQUIREMENTS." NEVERTHELESS,
 IN THE NARRATIVE FRAME SAID THE FOLLOWING:
 
    MR. DUPATY HAS BEEN PERFORMING AT AN ACCEPTABLE LEVEL DURING THE
 PROCEEDING 12
 
    MONTHS.  HOWEVER, MR. DUPATY IS A VERY CAPABLE INDIVIDUAL WHO HAS THE
 ABILITY TO PERFORM AND
 
    CONTRIBUTE AT A MUCH HIGHER LEVEL OF EXCELLENCE THAN HE HAS DURING
 THIS RATING
 
    PERIOD.  MR. DUPATY IS FULLY AWARE OF THE REQUIREMENTS AND
 RESPONSIBILITIES OF HIS JOB.  FOR
 
    MANY REASONS, HE HAD CHOSEN TO PERFORM IN A MANNER WHICH ONLY MEETS
 BASIC REQUIREMENTS IN
 
    SEVERAL JOB ASSIGNMENT AREAS.  IN SEVERAL WAYS, HIS ACTIONS HAVE BEEN
 VERY SELF-ORIENTED
 
    SHOWING LITTLE CONSIDERATION FOR THOSE WORKING WITH HIM AND
 EXHIBITING LITTLE APPRECIATION OF
 
    THE IMMENSE PROBLEMS INVOLVED IN MANAGING AN EN-ROUTE FACILITY.
 
    I WILL CONTINUE TO ENCOURAGE ED TO DEVELOP AN ATTITUDE OF COOPERATION
 AND MUTUAL
 
    UNDERSTANDING RATHER THAN BEING SO SELF DIRECTED.  AT THE SAME TIME,
 I WILL CONTINUE TO TRY TO
 
    EARN ED'S RESPECT AS WELL AS HIS RESPECT FOR MANAGEMENT AS A WHOLE
 THROUGH THE TYPE OF
 
    LEADERSHIP AND DIRECTION THAT IS CONDUCIVE TO MUTUAL UNDERSTANDING,
 TRUST, AND THE ACHIEVEMENT
 
    OF EXCELLENCE.
 
    TO THIS DUPATY RESPONDED AS FOLLOWS:
 
    I, EDWARD DUPATY, DISAGREE WITH MOST AND RESENT SOME OF THE RATINGS
 AND REMARKS CONTAINED
 
    IN THIS EVALUATION.  IN THE REMARKS, THE WORKING GIVES A FALSE
 IMPRESSION OF WHAT THE PROBLEM
 
    IS REALLY ABOUT.  SATCS FRAME WI-L NEVER BE ABLE TO ENCOURAGE ME TO
 DEVELOP AN ATTITUDE WHICH,
 
    IN MY OPINION, CONSTITUTES AN UNSAFE AND/OR UNHEALTHY ATMOSPHERE.
 THEREFORE, I AM RESERVING
 
    THE RIGHT TO APPEAL THIS EVALUATION.
 
    DUPATY FURTHER RESPONDED BY EXECUTING ON FEBRUARY 14 THE UNFAIR LABOR
 PRACTICE CHARGE WHICH GAVE RISE TO THIS PROCEEDING, AND BY VISITING ON
 THE SAME DAY AN EEO COUNSELOR.  ON APRIL 10 HE SIGNED A COMPLAINT OF
 RACIAL DISCRIMINATION WHICH WAS STILL PENDING AT THE TIME OF THE HEARING
 (RESPONDENT'S EXHIBIT NO. 2).  IN IT HE ASSERTED THAT FRAME
 DISCRIMINATED AGAINST HIM:
 
    BY THE LOW-GRADING OF MY PERFORMANCE EVALUATION REPORT AND BY THE
 CONSTANT ASSASSINATION OF
 
    CHARACTER BY MEANS OF DEFAMATORY (SIC) STATEMENTS WHICH DISCREDIT
 WITHOUT CONSIDERATION OR
 
    JUST CAUSE.  I AM TURNED DOWN WHEN I ASK FOR HELP.
 
    AS CORRECTIVE ACTION HE REQUESTED THAT AN ACCURATE AND OBJECTIVE
 EVALUATION BE MADE, THAT A WRITTEN APOLOGY BE OFFERED FOR THE OFFENSIVE
 REPLY TO HIS SEPTEMBER UCR AND THAT THERE BE A BETTER UNDERSTANDING AND
 COMMUNICATION, WITH RESPECT FOR HIS STATUS AS A PROFESSIONAL, AND, ABOVE
 ALL, AS A HUMAN BEING.
 
                        DISCUSSION AND CONCLUSIONS
 
    IN THE SPRING OF 1979, DUPATY'S WORK CHANGED IN TWO IMPORTANT
 RESPECTS:  HE WAS PLACED UNDER SUPERVISOR FRAME AND HE WAS ASSIGNED TO
 TRAIN SANCHEZ.  HE SOON FELT THAT THIS NEW RESPONSIBILITY WAS
 UNDERMINING HIS CAPACITY OF STAY "CURRENT," OR FULLY FAMILIAR WITH THE
 MANY ASPECTS OF A JOURNEYMAN CONTROLLER'S JOB.  HE REQUESTED GREATER
 OPPORTUNITY TO KEEP HIMSELF CURRENT, AND HE BEGAN TO RESIST ASSIGNMENT
 TO POSITIONS IN WHICH HE WAS NOT, OR AT LEAST FELT HE WAS NOT, CURRENT,
 AND TO INVOKE ARTICLE 55 WHEN GIVEN SUCH ASSIGNMENTS OR WHENEVER GIVEN A
 COMBINED OR MULTIPLE POSITION.  THUS HE RESISTED ASSIGNMENT TO COMBINED
 POSITIONS ON THE GROUND THAT HIS JOB DESCRIPTION DID NOT REQUIRE HIM TO
 ACCEPT, AND ON THE GROUND THAT SUCH ASSIGNMENTS VIOLATED ARTICLE 55.
 CLEARLY, HE WAS CONCERNED, ESPECIALLY WITH RESPECT TO COMBINED AND
 MULTIPLE POSITIONS, THAT HE COULD NOT SAFELY CONTROL AIR TRAFFIC.  HE
 WAS THE ONLY CONTROLLER TO INVOKE ARTICLE 55 CONCERNING SUCH
 ASSIGNMENTS.  IT IS EQUALLY CLEAR THAT HE FEELS, ASIDE FROM HIS PERSONAL
 CIRCUMSTANCES, THAT IT IS GENERALLY UNSAFE TO WORK COMBINED POSITIONS
 AND THAT THE UNDERSTAFFING AT THE HOUSTON SPECIALTY, AS REPORTED IN HIS
 JUNE 20 UCR, CREATES A "MOST DANGEROUS PROBLEM." THUS HE IS AT ODDS WITH
 MANAGEMENT OVER THE EXERCISE OF ITS PREROGATIVE TO DEPLOY ITS AVAILABLE
 MANPOWERS AS IT SEES FIT.
 
    ON THREE OCCASIONS DUPATY, IN ADDITION TO EXPRESSING HIS
 UNWILLINGNESS TO ASSUME A POSITION, HAS IN FACT DELAYED DOING SO.  ON
 MAY 9, HE DID SO IN THE BELIEF THAT HIS JOB DESCRIPTION PRECLUDED ANY
 REQUIREMENT THAT HE ACCEPT A COMBINED POSITION.  THIS LED TO A
 COUNSELING SESSION IN WHICH FRAME WARNED HIM THAT ANY FURTHER FAILURE
 PROMPTLY TO ASSUME SUCH A POSITION WOULD BE CONSIDERED AN ACT OF
 INSUBORDINATION.  HE RESPONDED THAT HE WOULD DO SO ONLY WHEN GIVEN A
 DIRECT ORDER, AND THAT HE WOULD INVOKE ARTICLE 55 EVERYTIME HE RECEIVED
 SUCH AN ORDER.  SIX WEEKS LATER, ON JUNE 19, SUPERVISOR FRAME ACCUSED
 HIM OF FAILING TO PULL FLIGHT STRIPS.  AT THE SUBSEQUENT COUNSELING
 MEETING DUPATY ASSERTED THAT HE PERFORMED HIS DUTIES IN A TIMELY MATTER.
  HE WAS NEVERTHELESS WARNED THAT FAILURE TO PROMPTLY CARRY OUT AN ORDER
 COULD RESULT IN DISCIPLINARY ACTION.  THERE IS NO EVIDENCE THAT ARTICLE
 55 WAS MENTIONED DURING EITHER THE INCIDENT OR THE COUNSELING SESSION.
 WHILE DUPATY PROTESTED THE LACK OF AN ASSISTANT, A MATTER WHICH
 ROUTINELY CAUSED HIM TO INVOKE THE ARTICLE, HE WAS IN FACT COUNSELED FOR
 NOT PROMPTLY OBEYING ORDERS.  FINALLY, ON JULY 29, DIFFERENT SUPERVISOR
 CAME TO THE CONCLUSION THAT DUPATY INSUBORDINATELY DELAYED ASSUMPTION OF
 A POSITION.  ON THIS OCCASION THE DELAY IS ACKNOWLEDGED.  THAT
 SUPERVISOR PROPOSED A REPRIMAND, WHICH REGULAR SUPERVISOR FRAME ISSUED
 ON AUGUST 19.  AGAIN, THERE IS NO SUGGESTION FROM EITHER THE TESTIMONY
 OF DUPATY OR FROM THE REPORTS OF STACY, THAT ARTICLE 55 PLAYED ANY ROLE
 IN THAT DELAY.  WHILE DUPATY, AS PATCO PRESIDENT JUAREZ SAID, MAY HAVE
 BEEN ATTEMPTING TO DETERMINE WHETHER HE WOULD HAVE AN ASSISTANT, FOR
 PURPOSES OF INVOKING ARTICLE 55, IF HE WAS NOT PROVIDED ONE, THERE WAS
 NO DISCUSSION OF THAT MATTER.  NOR IS IT CLEAR WHY THE EXERCISE OF
 ARTICLE 55 RIGHTS OUGHT TO CAUSE ANY DELAY.
 
    THUS, EXCEPT FOR DUPATY'S TESTIMONY THAT HE "IMAGINED" HE WAS CALLED
 IN AND THREATENED WITH DISCIPLINE ON MAY 9 9ECAUSE HE HAD BEEN INVOKING
 ARTICLE 55, THERE IS NO SUGGESTION THAT HIS HABIT OF DOING SO LED TO HIS
 BEING COUNSELED OR REPRIMANDED.  HE ATTRIBUTES NO WORDS TO ANY
 SUPERVISOR WHICH WOULD INDICATE A DISPOSITION TO PUNISH HIM SIMPLY FOR
 INVOKING THE ARTICLE.  CONTRARY TO THE ASSERTION THAT THE REPRIMAND
 LETTER IS REPLETE WITH REFERENCES TO ARTICLE 55, THAT DOCUMENT MENTIONS
 IT ONLY ONCE, IN QUOTING DUPATY'S EXPRESSION OF HIS DETERMINATION TO
 ACCEPT COMBINED POSITIONS ONLY WHEN ORDERED TO DO SO AND TO INVOKE THE
 ARTICLE WHENEVER HE RECEIVED SUCH AN ORDER.  IT IS CLEAR THAT, WHEN
 DUPATY INITIATED EFFORTS TO HAVE THE LETTER WITHDRAWN, DISCUSSIONS TOOK
 PLACE ABOUT HIS RIGHT TO INVOKE THE ARTICLE, AND THAT HE WAS GIVEN
 ASSURANCE THAT HE HAD THAT RIGHT.  THUS IT IS EVIDENT THAT THE USE OF
 THE ARTICLE WAS A BONE OF CONTENTION BETWEEN FRAME AND DUPATY, AND IT
 APPEARS THAT ITS USE IN EVERY SITUATION DUPATY REGARDED AS POSING A
 DANGER IRRITATED FRAME.  THIS IS WHOLLY UNDERSTANDABLE, ESPECIALLY IN
 LIGHT OF THE QUARREL WHETHER IT APPROPRIATELY APPLIED TO STAFFING-LEVEL
 DISPUTES AS OPPOSED TO DISAGREEMENTS OVER THE MANAGEMENT OF PARTICULAR
 TRAFFIC.  ULTIMATELY, IT IS THE FACT THAT OVER THE MANAGEMENT OF
 PARTICULAR TRAFFIC.  ULTIMATELY, IT IS THE FACT THAT DUPATY INVOKES
 ARTICLE 55 VIRTUALLY EVERY DAY, THAT HE FAILED TO REPORT EVEN A SINGLE
 INSTANCE OF A SUPERVISOR EXPLICITY THREATENING DISCIPLINE ON THAT GROUND
 OR BECAUSE HE FILED THE UNSATISFACTORY CONDITION REPORT, AND THAT THE
 THREE COUNSELING SESSIONS WHICH LED TO THE REPRIMAND WERE BASED ON
 FAILURE PROMPTLY TO CARRY OUT ORDERS.  SINCE THE SERIOUS MATTER OF NOT
 PROMPTLY PLUGGING IN TO RELIEVE A DEPARTING CONTROLLER IS ACKNOWLEDGED,
 AND IS THE INCIDENT WHICH TRIGGERED THE LETTER OF REPRIMAND, IT IS
 DIFFICULT TO UNDERSTAND ON WHAT GROUND THAT REPRIMAND IS ARGUED TO
 CONSTITUTE A REPRISAL FOR THE ALLEGEDLY PROTECTED ACTIVITY OF INVOKING
 THE ARTICLE OR FILING THE UCR.  WHILE THE REPRIMAND DID INDEED FOLLOW
 THESE OTHER ACTIVITIES, AND THEREFORE INCONTESTABLY MAY HAVE BEEN CAUSED
 BY THEM, DUPATY SURELY PROVIDED THE OPPORTUNITY AND EVEN THE OBLIGATION
 TO TAKE ACTION SEEKING A CORRECTION OF HIS INCREASING TENDENCY TO DELAY
 ACCEPTANCE OF ASSIGNMENTS BY ARGUING ABOUT ORDERS, DISPUTING WHETHER
 INSTRUCTIONS CONSTITUTED ORDERS, AND ASKING WHETHER HE WOULD HAVE AN
 ASSISTANT WHEN IT WAS MADE OBVIOUS, IF NOT EXPLICIT, THAT HE WOULD NOT.
 IN SUCH CIRCUMSTANCES, THERE IS GROUND FOR NO MORE THAN SUSPICION THAT
 THE USE OF ARTICLE 55, BECAUSE IT WAS NECESSARILY ENMESHED IN HIS
 RESISTANCE TO SUCH ASSIGNMENTS, MAY HAVE BEEN AN INGREDIENT IN FRAME'S
 DECISION TO ISSUE AN OTHERWISE WARRANTED REPRIMAND.  I THEREFORE
 CONCLUDE THAT THE GENERAL COUNSEL HAS NOT CARRIED THE BURDEN OF PROOF,
 AND I RECOMMEND DISMISSAL OF THE ALLEGATION THAT DUPATY WAS REPRIMANDED
 IN RETALIATION FOR HIS ACTIVITY IN INVOKING CONTRACT ARTICLE 55, OR IN
 FILING THE UCR.
 
    THE ALLEGATION THAT SUPERVISOR FRAME ON JANUARY 19, 1980, MADE
 DEROGATORY REMARKS CONCERNING . . . (DUPATY'S) PERFORMANCE OF DUTIES ON
 AN UNSAFE (SIC) CONDITION REPORT BECAUSE OF . . . (HIS) MEMBERSHIP IN
 AND ACTIVITIES ON BEHALF OF" PATCO IS NOT SUPPORTED BY THE EVIDENCE, FOR
 THE ABOVE-STATED REASONS, INSOFAR AS IT IS BASED UPON THE INVOCATION OF
 ARTICLE 55.  THE REMAINING ALLEGEDLY IMPERMISSIBLE REASON IS THE VERY
 FILING OF THE UCR ITSELF.  THE RECORD IS DEVOID OF EVIDENCE THAT DUPATY
 WAS THREATENED, UPBRAIDED OR EVEN CRITICIZED FOR FILING THE UCR WHICH
 LED TO THIS ALLEGATION OR THE FILING THE EARLIER ONE.  AS THE UCR
 REQUIRED AN INVESTIGATION OF THE INCIDENT AND A REPORT, ANY HONEST
 INVESTIGATION AND REPORT WAS PREGNANT WITH THE POSSIBILITY THAT FAULT
 WOULD BE FOUND WITH THE CONTROLLER'S JOB PERFORMANCE.  I AM ASKED TO
 CONCLUDE, SOLELY ON THE GROUND THAT THE REPORT WAS CRITICAL OF DUPATY'S
 PERFORMANCE ON THAT DAY, THAT SUCH CRITICISM WAS NOT BASED ON AN
 OBJECTIVE ASSESSMENT OF THAT PERFORMANCE BUT WAS RATHER MOTIVATED BY A
 DESIRE TO RETALIATE AGAINST HIM FOR FILING THE UCR.  AS NOTED, THERE IS
 NO INDEPENDENT EVIDENCE THAT FRAME OR ANY MANAGEMENT OFFICIAL WAS
 DISPOSED TO PUNISH DUPATY FOR FILING THE REPORT.  NOR IS THERE ANY
 EVIDENCE THAT THE CRITICISM WAS UNWARRANTED, SO AS TO GIVE RISE TO A
 SUSPICION THAT THE ALLEGEDLY UNLAWFUL REASON WAS RESPONDENT'S TRUE
 MOTIVE.  AGAIN, THE CASE SOUNDS IN PAST HOC, ERGO PROPTER HOC.  I
 THEREFORE RECOMMEND THAT THIS ALLEGATION ALSO BE DISMISSED, AS TOTALLY
 UNSUPPORTED BY THE EVIDENCE, AND I NEED NOT REACH THE HIGHLY
 QUESTIONABLE CONTENTION THAT SUCH ACTIVITY CONSTITUTES ASSISTANCE TO A
 UNION.
 
    FINALLY, THERE IS THE MATTER OF THE ANNUAL PERFORMANCE EVALUATION, IN
 WHICH FRAME, IN GIVING DUPATY THE SAME "SATISFACTORY" HE HAD PREVIOUSLY
 RECEIVED, WAS RATHER CRITICAL OF HIS PERFORMANCE.  THUS HE NOTED THAT
 DUPATY MET ONLY THE BASIC REQUIREMENTS IN SEVERAL JOB AREAS, AND WAS
 SELF-ORIENTED, SHOWING LITTLE CONSIDERATION FOR THOSE WORKING WITH HIM
 AND LITTLE APPRECIATION FOR THE IMMENSE PROBLEMS INVOLVED IN MANAGING
 THE FACILITY.  HE ALSO SOLICITED A COOPERATIVE ATTITUDE.  DUPATY
 RESPONDED THAT FRAME WOULD NEVER ENCOURAGE IN HIM THE DEVELOPMENT OF AN
 ATTITUDE WHICH "CONSTITUTES AN UNSAFE AND/OR UNHEALTHY ATMOSPHERE." THIS
 REMARK INDICATES THAT DUPATY AT LEAST FELT THAT SAFETY CONSIDERATIONS
 (PRESUMABLY ARTICLE 55 AND UCRS) WERE THE UNARTICULATED PREMISE OF
 FRAME'S CONCLUSION THAT HE WAS SELF-ORIENTED, SELF-DIRECTED,
 UNCOOPERATIVE AND UNAPPRECIATIVE.  THERE IS NO EVIDENCE THAT, IN THE
 DISCUSSIONS WHICH SHOULD ATTEND AN EVALUATION, FRAME MADE ANY EXPLICIT
 MENTION, OR OTHERWISE SUGGESTED, THAT ARTICLE 55 AND UCRS WERE THE BASIS
 FOR HIS COMMENTS.  WE ARE THUS LEFT WITH THE DOCUMENT ITSELF, AND THE
 INTERPRETATION IT SHOULD RECEIVE IN A CONTEXT WHERE DUPATY HAD BEEN
 CLEARLY UNCOOPERATIVE IN ACCEPTING ASSIGNMENTS AND ALSO HAD BEEN ACTIVE
 IN INVOKING ARTICLE 55 AND IN FILING UCRS.
 
    I HAVE CONCLUDED THAT FRAME WAS ANNOYED AT DUPATY'S ROUTINE USE OF
 ARTICLE 55 WHENEVER CALLED UPON TO ASSUME COMBINED POSITIONS, A USE HE
 REGARDED AS INAPPROPRIATE BECAUSE IT WAS UNRELATED TO THE ACTUAL
 MANAGEMENT OF PARTICULAR AIR TRAFFIC.  HE WAS ALSO CONCERNED ABOUT, AND
 DISPUTED WITH DUPATY THE QUESTION WHETHER THE LATTER WAS RELIEVED OF
 RESPONSIBILITY FOR AN ENTIRE SHIFT WHEN HE INVOKED THE ARTICLE.  ASIDE
 FORM THIS UNDERSTANDABLE DISPUTE, THERE IS, AS NOTED, SIMPLY NO EVIDENCE
 THAT FRAME EVER INDICATED A DISPOSITION TO PUNISH DUPATY FOR SUCH
 REASON.  THERE IS, ON THE OTHER HAND, AMPLE EVIDENCE THAT DUPATY
 RESISTED JOB ASSIGNMENTS TO THE POINT OF NOT PROMPTLY OBEYING ORDERS.
 THERE IS ALSO HIS OWN STATEMENT THAT HE DID NOT RELIEVE CONTROLLERS IN
 ORDER, BUT WOULD RUN DOWN THE LIST UNTIL HE FOUND AN ACCEPTABLE
 (NON-COMBINED) POSITION.  CLEARLY, A BASIS EXISTED FOR DESCRIBING AS
 SELF-ORIENTED AND UNCOOPERATIVE A CONTROLLER WHO CHALLENGED
 MANAGEMENT'S
 RIGHT TO ASSIGN HIM COMBINED POSITIONS AS OUTSIDE HIS JOB DESCRIPTION,
 WHO QUIBBLED ABOUT THE DIFFERENCE BETWEEN A SUPERVISOR'S INSTRUCTION AND
 HIS ORDER, AND WHO DELAYED COMPLIANCE WITH INSTRUCTIONS.  SUCH A PERSON
 COULD BE APTLY DESCRIBED AS LACKING APPRECIATION FOR THE "IMMENSE
 PROBLEMS" FACED BY HIS SUPERIORS IN RUNNING THE FACILITY.  THE QUESTIONS
 REMAINS WHETHER, ON THIS RECORD, IT IS FAIR TO CONCLUDE THAT THESE
 CHARACTERIZATION OF DUPATY WERE ALSO MOTIVATED BY THIS PERSISTENCE IN
 INVOKING ARTICLE 55 AND IN FILING UCRS.  NO LANGUAGE IS ENTIRELY FREE
 FROM AMBIGUITY AND THE NARRATIVE OF FRAME'S EVALUATION OF DUPATY IS
 CERTAINLY OPEN TO THE INTERPRETATION THAT SELF-ORIENTATION,
 UNCOOPERATIVENESS AND UNAPPRECIATIVENESS ARE VEILED REFERENCES TO
 ARTICLE 55 AND UCRS.  GIVEN THE AMPLE BASIS FOR A LEGITIMATE CRITICISM
 ON OTHER GROUNDS AND THE ABSENCE OF OTHER EVIDENCE INDICATING THAT FRAME
 WAS DISPOSED TO RETALIATE AGAINST DUPATY FOR SUCH ACTIVITIES, I CONCLUDE
 THAT THIS ALLEGATION IS NOT SUPPORTED BY THE EVIDENCE, AND I RECOMMEND
 THAT IT BE DISMISSED.  /6/
 
                                   ORDER
 
    HAVING CONCLUDED THAT THE EVIDENCE DOES NOT SUPPORT THE ALLEGATIONS
 OF THE COMPLAINT, I RECOMMEND THAT IT BE DISMISSED IN ITS ENTIRETY.
 
                      JOHN H. FENTON
                      CHIEF ADMINISTRATIVE LAW JUDGE
 
    DATED:  FEBRUARY 24, 1981
    WASHINGTON, D.C.
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ RESPONDENT CAME TO THE HEARING PREPARED TO DEFEND JUST SUCH A
 "TRADITIONAL" CASE.  WHILE I FOUND THE COMPLAINT ADEQUATE TO SUPPORT THE
 GENERAL COUNSEL'S THEORY, AND THEREFORE OVERRULED A MOTION TO DISMISS,
 SUCH GENERALIZED PLEADING OBVIOUSLY CAN BE MISLEADING.
 
    /2/ THIS MAY HAVE GIVEN RISE TO THE FIRST CONFLICT BETWEEN DUPATY AND
 FRAME.  ON MAY 13 FRAME MADE A RECORD OF A CONFERENCE WITH DUPATY
 CONCERNING HIS BEHAVIOR IN CONNECTION WITH SANCHEZ'S TRAINING.  IT
 READS:  "RAN INTO CONSIDERABLE PROBLEMS WITH ED TODAY IN REGARD TO
 SANCHEZ'S TRAINING.  ED'S BEHAVIOR WAS COUNTERPRODUCTIVE.  ACCUSED ME OF
 BEING TOO HARD ON TONY.  CONVERSATION TOOK PLACE IN FRONT OF CREW AND
 TONY.  TONY DIDN'T NEED IT, AS FAR AS HIS CONFIDENCE GOES."
 
    /3/ DUPATY WAS ASKED WHETHER HE EVER FELT SUFFICIENTLY CURRENT IN HIS
 POSITION.  HE REPLIED THAT HE WILL NEVER FEEL SAFE WORKING MULTIPLE
 POSITIONS.  HE IS THE ONLY CONTROLLER WHO INVOKES ARTICLE 55 SIMPLY ON
 THE GROUND THAT THE ASSIGNED POSITION IS NOT SAFE.
 
    /4/ STACY'S AND DUPATY'S VERSION BEGIN TO DIFFER AT THIS POINT.
 STACY REPORTED THAT DUPATY REFUSED HIS ORDER TO RELIEVE GADDIE, THAT HE
 THEN GAVE DUPATY A DIRECT ORDER TO RELIEVE GADDIE, AND DUPATY REFUSED,
 STATING THAT HE NEEDED A REASON FOR BEING ORDERED TO RELIEVE GADDIE.
 STACY TOLD DUPATY HE WAS TO RELIEVE GADDIE BECAUSE HE TOLD HIM TO, AND
 REPORTED THAT DUPATY PLUGGED IN AND ASSUMED THE SECTOR AFTER GIVING
 GADDIE A HARD TIME DURING THE BRIEFING.  UNDER EITHER VERSION THERE WAS
 NOT PROMPT COMPLIANCE WITH STACY'S ORDERS.
 
    /5/ THERE WAS AN ASSISTANT CONTROLLER ON THAT DAY.
 
    /6/ I THEREFORE NEED NOT DISPOSE OF THE HIGHLY QUESTIONABLE
 PROPOSITIONS THAT FILING UCRS PURSUANT TO AN FAA PROGRAM DESIGN