Environment Protection Agency and Environmental Protection Agency, Region III (Respondents) and American Federation of Government Employees, Local 3631, AFL-CIO (Complainant)
[ v02 p170 ]
02:0170(18)CA
The decision of the Authority follows:
2 FLRA No.18
ENVIRONMENTAL PROTECTION AGENCY
and
ENVIRONMENTAL PROTECTION AGENCY,
REGION III
Respondents
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3631, AFL-CIO
Complainant
Assistant Secretary
Case No. 20-06234(CA)
DECISION AND ORDER
ON JUNE 12, 1979, ADMINISTRATIVE LAW JUDGE ROBERT J. FELDMAN ISSUED
HIS RECOMMENDED DECISION AND ORDER IN THE ABOVE-ENTITLED PROCEEDING
FINDING THAT THE RESPONDENT HAD NOT ENGAGED IN THE UNFAIR LABOR
PRACTICES ALLEGED IN THE COMPLAINT, AND RECOMMENDING THAT THE COMPLAINT
BE DISMISSED IN ITS ENTIRETY. NO EXCEPTIONS WERE FILED TO THE
ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER.
THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT RELATIONS, UNDER EXECUTIVE ORDER 11491, AS AMENDED,
WERE TRANSFERRED TO THE AUTHORITY UNDER SECTION 304 OF REORGANIZATION
PLAN NO. 2 OF 1978 (43 F.R. 36040), WHICH TRANSFER OF FUNCTIONS IS
IMPLEMENTED BY SECTION 2400.2 OF THE AUTHORITY'S RULES AND REGULATIONS
(44 F.R. 44741, JULY 30, 1979). THE AUTHORITY CONTINUES TO BE
RESPONSIBLE FOR THE PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN
SECTION 7135(B) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE (92 STAT. 1215).
THEREFORE, PURSUANT TO SECTION 2400.2 OF THE AUTHORITY'S RULES AND
REGULATIONS AND SECTION 7135(B) OF THE STATUTE, THE AUTHORITY HAS
REVIEWED THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE HEARING
AND FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED. THE RULINGS ARE
HEREBY AFFIRMED. UPON CONSIDERATION OF THE ADMINISTRATIVE LAW JUDGE'S
RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THE SUBJECT
CASE, AND NOTING PARTICULARLY THAT NO EXCEPTIONS WERE FILED, THE
AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS,
CONCLUSIONS AND RECOMMENDATION. /1/
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT IN ASSISTANT SECRETARY CASE
NO. 20-06234(CA) BE, AND IT HEREBY IS, DISMISSED.
ISSUED, WASHINGTON, D.C., NOVEMBER 29, 1979
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
JAY D. GOLDSTEIN, ESQUIRE
ASSISTANT REGIONAL COUNSEL
U.S. ENVIRONMENTAL PROTECTION AGENCY
6TH AND WALNUT STREETS
PHILADELPHIA, PENNSYLVANIA 19106
DAVID LANGFORD
PRESIDENT, AFGE, LOCAL 3631
6TH AND WALNUT STREETS
PHILADELPHIA, PENNSYLVANIA 19106
FOR THE COMPLAINANT
BEFORE: ROBERT J. FELDMAN
ADMINISTRATIVE LAW JUDGE
RECOMMENDED DECISION
THIS IS AN UNFAIR LABOR PRACTICE PROCEEDING IN WHICH A FORMAL HEARING
OF RECORD WAS HELD PURSUANT TO EXECUTIVE ORDER 11491, AS AMENDED,
(HEREINAFTER REFERRED TO AS "THE ORDER") AND 29 CFR, PART 203. THE
DECISION AND ORDER THAT FOLLOWS IS ISSUED FOR THE FEDERAL LABOR
RELATIONS AUTHORITY IN ACCORDANCE WITH THE TRANSITION RULES AND
REGULATIONS PUBLISHED IN THE FEDERAL REGISTER, VOL. 44, NO. 1, JANUARY
2, 1979, PP. 5-8.
STATEMENT OF THE CASE
THE COMPLAINT HEREIN IS PROLIX, OBSCURE AND TAUTOLOGICAL. IN 129
TORTUOUS PAGES, IT ALLEGES THAT THE ACTIVITY (E.P.A., REGION III) AND
ITS PARENT AGENCY (E.P.A.) HAVE VIOLATED SECTIONS 19(A)(1), (2), (4) AND
(6) OF THE ORDER IN THAT THEY HAVE ALLOWED, ENCOURAGED AND PARTICIPATED
IN ACTS AND PATTERNS OF VIOLATIONS OF THE ORDER. THE ACTS AND PATTERNS
COMPLAINED OF INCLUDE:
(S)STONEWALLING AND INTERMINABLE DELAYS, HARASSMENT, REPRISAL,
WHITEWASHING, CONDONING OF
IMPROPER TREATMENT OF UNION CONCERNS AND OF UNION ACTIVISTS, AND
REFUSING TO DEAL IN GOOD
FAITH WITH THE (U)NION TO DISCUSS AND RESOLVE ALLEGATIONS OF IMPROPER
TREATMENT OF ACTIVISTS.
BY DINT OF WHAT MUST HAVE BEEN HEROIC TENACITY AND SAINTLY PATIENCE,
THE REGIONAL ADMINISTRATOR DISTILLED FROM THE MASS OF DIFFUSE CHARGES
AND INAPPROPRIATE EVIDENTIARY MATERIAL COMPRISING THE COMPLAINT THE
FOLLOWING REMARKABLY CONCISE STATEMENT OF THE ISSUES PRESENTED FOR
DETERMINATION:
WHETHER THE RESPONDENTS HAVE VIOLATED SECTIONS 19(A)(1), (2), (4) AND
(6) OF THE ORDER BY
A.) PREVENTING DR. LANGFORD (PRESIDENT OF COMPLAINANT AFGE LOCAL
3631) FROM IMPLEMENTING
HIS POSITION DESCRIPTION AT LEAST SINCE NOVEMBER 2, 1976 AND
CONTINUING TO DATE;
B.) REFUSING TO PROVIDE INFORMATION ON THE REPORT AND RECOMMENDATIONS
OF NOVEMBER 1-5, 1976
PERSONNEL MANAGEMENT EVALUATION TEAM VISIT TO EPA, REGION III, AS
REQUESTED BY AFGE LOCAL 3631
ON NOVEMBER 3, 1976 AND ENSUING DATES;
C.) CHANGING PERSONNEL PRACTICES IN REGION III AS A RESULT OF THE
NOVEMBER 1-5, 1976
PERSONNEL MANAGEMENT EVALUATION TEAM VISIT AND FAILING TO AFFORD AFGE
LOCAL 3631 AN
OPPORTUNITY TO CONSULT AND CONFER ON THESE CHANGES PRIOR TO THEIR
IMPLEMENTATION;
D.) ENGAGING IN DILATORY AND EVASIVE TACTICS IN THE NEGOTIATIONS OF A
DUES WITHHOLDING
AGREEMENT.
AT A THREE-DAY HEARING BEFORE ME, EXTENSIVE TESTIMONY WAS TAKEN AND
EXHIBITS INTRODUCED ON ALL FOUR OF THE ABOVE ISSUES, AS WELL AS ON OTHER
ISSUES INVOLVED IN A RELATED UNFAIR LABOR PRACTICE PROCEEDING WITH WHICH
THIS CASE WAS TRIED. SUBSEQUENTLY, THE PARTIES AGREED UPON A
COMMENDABLE SETTLEMENT OF THEIR CONTROVERSY PURSUANT TO WHICH THE
ISSUES
DESIGNATED (B), (C) AND (D) ABOVE AND ALL THE ISSUES OF THE OTHER
PROCEEDING HAVE BEEN WITHDRAWN. THUS THE SOLE QUESTION REMAINING FOR
DETERMINATION HEREIN IS (A) - WHETHER DR. LANGFORD HAS BEEN PREVENTED
FROM IMPLEMENTING HIS POSITION DESCRIPTION IN VIOLATION OF THE ORDER.
FINDINGS OF FACT
SINCE MAY, 1976, DR. DAVID LANGFORD HAS BEEN THE PRESIDENT OF AFGE,
LOCAL 3631, WHICH HAS BEEN THE EXCLUSIVE BARGAINING REPRESENTATIVE OF
NON-PROFESSIONAL EMPLOYEES AT EPA REGION III FROM JULY 1976 TO DATE.
PRIOR TO AND CONTEMPORANEOUSLY WITH THE FILING OF THE CHARGE HEREIN, DR.
LANGFORD PROSECUTED GRIEVANCES AND ACTIVELY PARTICIPATED IN UNFAIR LABOR
PRACTICE PROCEEDINGS FOR THE UNION.
AT ALL TIMES GERMANE TO THE ISSUE, DR. LANGFORD WAS EMPLOYED BY
E.P.A., REGION III AS AN ENVIRONMENTAL ENGINEER (NOISE), OFFICIALLY
DESIGNATED AS A GS-12 SENIOR SPECIALIST. PERTINENT EXCERPTS FROM HIS
POSITION DESCRIPTION CERTIFIED DECEMBER 17, 1975 (COMPLAINANT'S EXHIBIT
17) ARE AS FOLLOWS:
THE PURPOSE OF THIS POSITION IS TO SERVE AS REGIONAL PROGRAM
SPECIALIST
(NOISE); RESPONSIBLE TO THE CHIEF, HAZARDOUS MATERIALS BRANCH FOR
HELPING TO DEVELOP AND
IMPLEMENT NOISE PROGRAM STRATEGIES, WORK PLAN PRIORITIES AND BUDGET
PROVISIONS BASED UPON
GUIDANCE RECEIVED FROM EPA HEADQUARTERS. BASED UPON FEDERAL AND
REGIONAL GUIDANCE, AND WITH
DIRECTION FROM CHIEF, HAZARDOUS MATERIALS BRANCH, THE INCUMBENT WILL
IMPLEMENT THE REGIONAL
NOISE PROGRAM PLAN BY WORKING WITH STATE AND LOCAL GOVERNMENT AGENCY
OFFICIALS.
THE KNOWLEDGE (QUALIFICATION) REQUIRED BY THE JOB INCLUDES:
1. A THOROUGH COMPREHENSIVE TECHNICAL KNOWLEDGE OF THE PRINCIPLES OF
SOUND GENERATION AND
PROPAGATION; THE PSYCHOLOGICAL IMPACT OF NOISE ON PUBLIC HEALTH AND
WELFARE.
2. THE STATE-OF-THE-ART KNOWLEDGE IN NOISE CONTROL TECHNOLOGY AND
THE FEDERAL/STATE/LOCAL
STANDARDS AND PROGRAMS IN NOISE ABATEMENT.
3. A TECHNICAL KNOWLEDGE OF THE PRINCIPLES OF RADIATION AS THEY
AFFECT THE ENVIRONMENT AND
PUBLIC HEALTH.
* * * *
1. PROGRAM PLANNING:
THE INCUMBENT IN THIS POSITION, WORKING CLOSELY WITH THE CHIEF,
HAZARDOUS MATERIALS BRANCH
PROVIDES TECHNICAL INPUTS THAT ARE NECESSARY TO DEVELOP VIABLE
REGIONAL PROGRAM PLANS. THE
INCUMBENT WILL COORDINATE WITH OTHER REGIONAL OFFICE DIVISIONS AND
OFFICES WHERE THERE OCCURS
AN OVERLAP OF RESPONSIBILITY.
* * * *
2. PROGRAM EVALUATION:
EVALUATES ENVIRONMENTAL IMPACT STATEMENTS WHERE NOISE IS CONSIDERED A
FACTOR. EVALUATES
WHETHER NOISE POLLUTION WILL BE ADEQUATELY CONTROLLED DURING THE
OPERATION OF PROPOSED
HIGHWAY, RAILWAYS, AIRPORTS, PORT DEVELOPMENT, ETC.
* * * *
PROGRAM ANALYSIS:
INSPECTS, EVALUATES AND MONITORS FEDERAL FACILITIES IN CONJUNCTION
WITH THE FEDERAL
FACILITIES SECTION, TO ASCERTAIN WHETHER FEDERAL, STATE AND LOCAL
NOISE REQUIREMENTS HAVE BEEN
VIOLATED. RECOMMENDATIONS ARE MADE TO ALLEVIATE ANY VIOLATION THAT
MAY BE UNCOVERED.
ANALYSES CITIZENS' COMPLAINTS TO DETERMINE WHETHER FEDERAL
REGULATIONS ARE BEING VIOLATED
AND RECOMMENDS WHAT REMEDIAL ACTION MAY BE TAKEN TO REDUCE OR
ALLEVIATE COMPLAINTS. ALSO
DETERMINES THE EFFECTIVENESS FEDERAL NOISE ABATEMENT PROGRAMS HAVE.
CONDUCTS ENVIRONMENTAL NOISE MONITORING PROGRAMS TO ESTABLISH
BASELINE NOISE
CHARACTERISTICS WITHIN THE REGION; THESE PROGRAMS ALSO OBTAIN TREND
DATA.
* * * *
4. PROGRAM DEVELOPMENT:
DEVELOPS A PUBLIC AWARENESS TO ENVIRONMENTAL NOISE THROUGH SPECIAL
DEMONSTRATION AND
EDUCATIONAL PROJECTS. THESE INCLUDE SPEAKING ENGAGEMENTS TO CIVIC
AND EDUCATIONAL
ORGANIZATIONS, AND THE DEVELOPMENT AND IMPLEMENTATION OF NOISE
ORIENTED SEMINARS AND
WORKSHOPS. RELATING TO THE SEMINARS AND WORKSHOPS, THE INCUMBENT
DETERMINES THE DESIRED
TARGET AUDIENCE, DEVELOPS THE AGENDA, ESTABLISHES SCHEDULES, AND
OBTAINS NECESSARY MATERIALS
AND SPEAKERS.
* * * *
5. PROGRAM ADMINISTRATION:
PROVIDES RESPONSES TO PUBLIC INQUIRIES FOR INFORMATION AND ADVISES ON
ENVIRONMENTAL NOISE.
* * * *
6. PROGRAM COORDINATION:
COORDINATES WITH OTHER FEDERAL AGENCIES (WITHIN THE REGION) TO INSURE
THAT THE INTENT OF
THE NOISE CONTROL ACT OF 1972 IS BEING IMPLEMENTED.
INTERFACES WITH HEADQUARTERS, OFFICE OF NOISE ABATEMENT AND CONTROL
REGARDING THE
DEVELOPMENT AND IMPLEMENTATION OF NOISE PROGRAM PLANS. POLICY, AND
REQUIRED ACHIEVEMENT
MANDATED BY THE NOISE CONTROL ACT OF 1972.
PARTICIPATES IN SEMINARS, HEARINGS, ETC., AS ASSIGNED BY THE CHIEF,
HAZARDOUS MATERIALS
BRANCH, AS THE EPA REGIONAL NOISE REPRESENTATIVE.
7. PROGRAM FORECASTING:
PROVIDES TO STATE AND LOCAL GOVERNMENT AGENCIES THE EXPECTED IMPACT
OF THE NEW OR SOON TO
BE PROMULGATED REGULATIONS PURSUANT TO THE NOISE CONTROL ACT OF 1972,
E.G., THE IMPACT OF
INTERSTATE MOTOR CARRIER NOISE STANDARDS ON STATE RESOURCE
REQUIREMENTS, NEW PRODUCT
REGULATIONS, ENFORCEMENT OF ENABLING LEGISLATION, ETC.
8. PROGRAM ASSISTANCE:
PROVIDES TECHNICAL ASSISTANCE TO STATES AND LOCAL GOVERNMENTS IN THE
DEVELOPMENT AND
IMPLEMENTATION OF NOISE CONTROL PROGRAMS, INCLUDING PREPARATION OF
ORDINANCES, SURVEY NEEDS
AND ENFORCEMENT TECHNIQUES.
* * * *
9. ADDITIONAL DUTIES:
PROVIDES ASSISTANCE, AS DIRECTED BY THE CHIEF, HAZARDOUS MATERIALS
BRANCH TO THE REGIONAL
RADIATION REPRESENTATIVE IN SPECIAL ACTIVITIES OF THE REGION'S
RADIATION PROGRAM. EXAMPLES OF
SUCH ASSISTANCE ARE: (1) SUPPORT IN TECHNICAL REVIEW OF EIS FOR
FIXED NUCLEAR FACILITIES, (2)
TECHNICAL ASSISTANCE TO STATE AND LOCAL AGENCIES AND (3) WORKSHOP
DEVELOPMENT AND
IMPLEMENTATION.
DUTIES LISTED ABOVE SHALL NOT CONSUME IN EXCESS OF 25% OF THE TOTAL
WORK EFFORT FOR THIS
POSITION.
DR. LANGSFORD'D BACKGROUND IS IN THE FIELD OF RADIATION, BUT
FOLLOWING A REDUCTION-IN-FORCE IN OR ABOUT FEBRUARY 1975, HE ENTERED
UPON EMPLOYMENT IN THE NOISE AREA. HIS FORMAL TRAINING IN THE LATTER IS
LIMITED TO A ONE-WEEK NOISE COURSE AND ANOTHER ONE-WEEK COURSE IN
ENVIRONMENTAL IMPACT STATEMENTS. IN ADDITION, HE RECEIVED SOME INFORMAL
ON-THE-JOB TRAINING. HIS PERFORMANCE EVALUATIONS WERE HIGH.
MR. PATRICK ANDERSON IS ALSO EMPLOYED AT REGION III AS AN
ENVIRONMENTAL ENGINEER (NOISE), GRADE GS-12, HIS ORGANIZATIONAL JOB
TITLE BEING REGIONAL NOISE REPRESENTATIVE. HIS POSITION DESCRIPTION IS
VIRTUALLY THE SAME AS DR. LANGFORD'S, BUT WITHOUT ANY REFERENCE TO
RADIATION. HIS BACKGROUND AND EXPERIENCE IN THE FIELD OF NOISE IS
SIGNIFICANTLY GREATER THAN DR. LANGFORD'S AND HE IS SENIOR TO DR.
LANGFORD IN POINT OF SERVICE IN THE REGION III NOISE UNIT.
IN WORK ASSIGNMENTS, JOBS THAT NEEDED CONSIDERABLE TECHNICAL
EXPERTISE WERE USUALLY GIVEN TO MR. ANDERSON, WHILE THOSE REQUIRING MORE
GENERALIZED KNOWLEDGE OF THE FIELD WERE GIVEN TO DR. LANGFORD. IN THE
AREA OF PUBLIC OR ORGANIZATIONAL ACTIVITIES, SUCH AS REGIONAL NOISE
CONFERENCES, SPEAKING ENGAGEMENTS TO CIVIC AND EDUCATIONAL GROUPS,
PARTICIPATION IN SEMINARS, WORKSHOPS AND PANEL DISCUSSIONS, MR. ANDERSON
WAS ALMOST INVARIABLY SELECTED FOR SUCH DUTY TO THE EXCLUSION OF DR.
LANGFORD. IN MANY INSTANCES, MR. ANDERSON, WHO HAD ESTABLISHED
SOMETHING OF A REPUTATION IN NOISE CIRCLES, WAS REQUESTED TO ATTEND BY
THE SPONSORING ORGANIZATIONS. DR. LANGFORD WAS AFFORDED LITTLE
OPPORTUNITY TO BECOME WELL-KNOWN IN THE FIELD.
CONCLUSIONS OF LAW
ESSENTIALLY, ALL OF THE EVIDENCE ADDUCED EVINCES A PATTERN AND
PRACTICE OF PREFERRING ONE EMPLOYEE OVER ANOTHER WITH RESPECT TO CERTAIN
WORK ASSIGNMENTS AND CERTAIN EXTERNAL FUNCTIONS. WHETHER SUCH
PREFERENCE BETWEEN TWO EMPLOYEES HAVING THE SUBSTANTIALLY THE SAME
POSITION DESCRIPTION AMOUNTS TO UNLAWFUL DISCRIMINATION OR OTHER
VIOLATION OF THE ORDER REMAINS TO BE DETERMINED.
BEARING IN MIND THAT RESPONDENTS RESERVE THE RIGHT TO DIRECT
EMPLOYEES OF THE AGENCY AND TO DETERMINE THE METHODS, MEANS, AND
PERSONNEL BY WHICH OPERATIONS ARE TO BE CONDUCTED (SEE ORDER SEC.
12(B)), DR. LANGFORD'S SUPERVISORS WERE UNDER NO OBLIGATION TO ASSIGN
HIM TO THE SAME "OUTSIDE" ACTIVITIES AS THEY ASSIGNED MR. ANDERSON.
EVEN IF WE ASSUME THAT THE EVIDENCE DEMONSTRATES THEIR CURTAILMENT OF
HIS PERFORMANCE OF SOME OF THE DUTIES REFERRED TO IN ITEMS 4 AND 6 OF
HIS POSITION DESCRIPTION ABOVE DESCRIBED, COMPLAINANT HAS THE BURDEN OF
PROVING THAT THEY EXERCISED AN APPARENT RIGHT FOR A PROSCRIBED REASON OR
WITH AN ULTERIOR MOTIVE. LET US CONSIDER THEN THE ACTS OR OMISSIONS
COMPLAINED OF IN THE LIGHT OF EACH OF THE PROVISIONS OF SECTION 19(A)
RELIED ON.
UNDER SECTION 19(A)(1), COMPLAINANT CHARGES INTERFERENCE WITH,
RESTRAINT OR COERCION OF DR. LANGFORD IN THE EXERCISE OF THE RIGHTS
ASSURED BY THE ORDER. BUT WHAT IS SOUGHT TO BE SECURED IN THIS
PROCEEDING IS A RIGHT TO EQUAL PARTICIPATION IN THE PUBLIC RELATIONS
ASPECTS OF A JOB (IRRESPECTIVE OF ANY TALENT THEREFOR), TO ENJOY THE
TRAVEL AND KUDOS ASSOCIATED WITH REPRESENTING EPA IN REGIONAL AND
COMMUNITY AFFAIRS, AND TO ACQUIRE PERSONAL RECOGNITION IN A SPECIALIZED
FIELD. NONE OF SUCH "RIGHTS" ARE ASSURED BY THE ORDER (OR EVEN BY THE
POSITION DESCRIPTION, FOR THAT MATTER). CONSEQUENTLY, NO VIOLATION OF
SECTION 19(A)(1) IS ESTABLISHED, UNLESS IT BE SHOWN DERIVATIVELY THROUGH
VIOLATION OF ANOTHER PROVISION.
IF THE SELECTION OF DR. ANDERSON FOR THE AFOREMENTIONED
ORGANIZATIONAL AND COMMUNITY ACTIVITIES BE REGARDED AS DISCRIMINATORY
VIS-A-VIS DR. LANGFORD, THE QUESTION IS WHETHER SUCH DISCRIMINATION IN
CONDITIONS OF EMPLOYMENT WAS INTENDED TO, OR WAS LIKELY TO, DISCOURAGE
MEMBERSHIP IN A LABOR ORGANIZATION WITHIN THE MEANING OF SECTION
19(A)(2). NOT ONLY IS THERE NO EVIDENCE OF SO-CALLED "ANTI-UNION
ANIMUS", BUT THERE IS AFFIRMATIVE EVIDENCE OF VALID REASONS FOR THE
SELECTION OF MR. ANDERSON. IT IS DECIDEDLY MORE REASONABLE TO DRAW THE
INFERENCE THAT MR. ANDERSON WAS CHOSEN BECAUSE OF EXPERIENCE,
REPUTATION, SENIORITY AND PERSONAL SUITABILITY THAN TO INFER THAT DR.
LANGFORD WAS REJECTED BECAUSE OF HIS UNION ACTIVISM. IT IS APPARENT
THAT FAVORITISM PLAYED A PART IN THE SELECTION, WHICH MAY BE POOR
PERSONNEL PRACTICE, BUT IT DOES NOT AMOUNT TO A 19(A)(2) OFFENSE.
SIMILARLY, THE FACT THAT DR. LANGFORD HAD FILED A NUMBER OF
COMPLAINTS UNDER THE ORDER AND HAD ACTIVELY PARTICIPATED IN OTHER UNFAIR
LABOR PRACTICE PROCEEDINGS AGAINST RESPONDENT DOES NOT OF ITSELF
ESTABLISH DISCRIMINATION UNDER SECTION 19(A)(4). THE EVIDENCE FAILS TO
SHOW THAT MR. ANDERSON'S NEARLY EXCLUSIVE PUBLIC REPRESENTATION OF
REGION III, BEGUN LONG BEFORE DR. LANGFORD'S PARTICIPATION IN ULP
PROCEEDINGS, AND THE RESULTANT DENIAL OF ITS PRIVILEGES AND PERQUISITES
TO DR. LANGFORD, WERE IN REPRISAL FOR THE LATTER'S VIGOROUS PROTECTION
OF HIS RIGHTS, AND THOSE OF OTHER EMPLOYEES, UNDER THE ORDER.
WITH RESPECT TO SECTION 19(A)(6), THERE IS NO EVIDENCE OF REFUSAL TO
CONSULT, CONFER OR NEGOTIATE WITH A LABOR ORGANIZATION ON THE ISSUE AT
HAND, TO WIT, DR. LANGFORD'S IMPLEMENTATION OF HIS POSITION DESCRIPTION.
THOUGH DR. LANGFORD INDIVIDUALLY REQUESTED CERTAIN ASSIGNMENTS AND
SOUGHT TO DISCUSS HIS FAILURE TO RECEIVE THEM, THE PROOF DOES NOT
INDICATE ANY REQUEST BY LOCAL 3631 TO CONSULT, CONFER OR NEGOTIATE ON
THAT SPECIFIC SUBJECT PRIOR TO THE FILING OF THE CHARGE HEREIN.
MOREOVER, EVEN IF SUCH REQUEST WERE MADE, IT IS EXCEEDINGLY DOUBTFUL
THAT ANY CONSULTATION, CONFERENCE OR NEGOTIATION WITH A UNION IS
REQUIRED ON A WORK-SELECTIVITY PROBLEM IN THE ABSENCE OF VIOLATION OF
OTHER PROVISIONS OF THE ORDER.
UNDER-UTILIZATION, EVEN IF ACTIONABLE PER SE, HAS NOT BEEN
ESTABLISHED, SINCE IT HAS NOT BEEN DEMONSTRATED THAT DR. LANGFORD HAS
THE REQUISITE SKILL IN THE SPECIFIC ACTIVITY IN WHICH HE WAS GIVEN
LITTLE OR NO CHANCE TO ENGAGE. WHAT HE REALLY COMPLAINS OF IS LACK OF
OPPORTUNITY FOR CAREER DEVELOPMENT, BUT THAT IS AN AREA CLEARLY OUTSIDE
THE PROVINCE OF THESE PROCEEDINGS, PRESENTING QUESTIONS STILL TO BE
ANSWERED BY THE SUPREME COURT UNDER TITLE VII.
ALL IN ALL, I FIND THAT COMPLAINANT HAS NOT SUSTAINED ITS BURDEN OF
PROVING BY A PREPONDERANCE OF THE EVIDENCE THAT RESPONDENTS PREVENTED
DR. LANGFORD FROM IMPLEMENTING HIS POSITION DESCRIPTION IN VIOLATION OF
THE ORDER.
RECOMMENDATION
IN VIEW OF THE FOREGOING, I RECOMMEND THAT THE COMPLAINT HEREIN BE
DISMISSED.
ROBERT J. FELDMAN
ADMINISTRATIVE LAW JUDGE
DATED: JUNE 12, 1979
WASHINGTON, D.C.
/1/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
OF 1978 (92 STAT. 1224), THE PRESENT CASE IS DECIDED SOLELY ON THE BASIS
OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
THE DECISION AND ORDER DOES NOT PREJUDGE IN ANY MANNER EITHER THE
MEANING OR APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR THE
RESULT WHICH WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN
UNDER THE STATUTE RATHER THEN THE EXECUTIVE ORDER.