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management officials and staff members, have no significant role 271 que ponit increase awarded. Merit increases are awarded at the dimeresion of the supervisors. A review of the personnel files substantiated the OFCCP's position. Such examples cited in the OFCCP's response as in Group A-2 Cases #1, #11, #13, #27 #28, 29, #32, etc...clearly demonstrate that performance evaluation is not a determining factor in the amount of merit increase the employee receives (Tab 11).

B.

The dissimilarity of academic disciplines - The Staff Member Salary Guidelines used in establishing initial salaries for candidates for employment, do not consider academic disciplines. The OFCCP's analysis of the personnel files did not identify any particular academic discipline which would require a higher starting salary. Group A-1 Case #15 compares six White males and one Asian male having the same degree (Ph.D Physics) and 3.09/3.99 years of related experience. There is a difference of $4,380 yearly salary between the highest initial salary and the lowest (Tab 11).

Even within the same academic discipline and similar years of related experience, LANL's compensation program does not demonstrate any consistency in determining initial pay.

C.

Different Laboratory organizations have very different missions and charters OFCCP's analysis of the voluminous material submitted by LANL in their rebuttal did not disclose that employees of

a particular division were given higher initial salaries or greater percentage merit increases than their counterparts in other divisions.

V. The time element used when comparing years of relevant experienceOFCCP is in agreement that relevant experience varied from one year to over ten years. However, it should be pointed out that when experience varied more than a year or eighteen months, it was clearly the minority/female who had the greater years of related experience.

E. Examination of the OFCCP's salary analyses did not indicate
a consistent approach as to what constituted a "substantial salary
difference."

The OFCCP explained in detail to the LANL's representatives that a determination had been made that a salary difference of $600/year was substantial. Those minority incumbents included in comparisons with less than a $600/year difference were included to ensure that all incumbents which met the criteria of comparability were included. These minorities/female were not identified as victims.

F. Many of the same employees have been used several time for comparison in different groups.

This statement is correct; however, it was agreed during conversations with LANI personnel that these groups could be consolidated as noted in LANI.'s response to comparison Group A-2 Case #39. As for the exceptional candidate brought in at anigher initial salary, the OFCCP's position is that this Lactor would be strongly considered in analyzing LANL's rebuttal.

G. Some of the starting salaries used in the OFCCP amended show cause letter are not based on the same time period.

This factor was considered in responding to LANL's rebuttal. However, the OFCCP could not identify a consistent policy which LANL followed in establishing initial salaries. For example, in comparison Group A-1 Case #6 both White male Z#090144 and the minority were hired in August 1979. While the White male was hired under the FY-79 guidelines the minority was hired under Fy-78 guidelines. The OFCCP disclosed that while some new employees were hired in June they were brought in at the new fiscal year guidelines which took effect on October 1 of that year. In contrast, some employees hired in July, August and September were hired under that year's salary guidelines. The OFCCP could not identify any consistency in the application of this factor.

LANL had agreed to conciliate in 17 individual comparisons; however, their position has changed since the letter of July 20, 1984, and now has refused to discuss any of the salary disparity comparisons on a one to one basis. LANL's response to the CFCCP's amended show cause notice was able to rebut some of the salary disparities. The status of the comparisons addressed in the amended show cause notice is as follows:

On October 9, 1984, OFCCP representatives from the San Antonio
Area Office went to Los Alamos in an attempt to negotiate the
salary disparity comparisons which still remained unresolved.
At that time, LANL officials informed the OFCCP that LANL would
not negotiate the salary disparity issue on a one to one basis,
even those comparisons which they had previously, agreed to
conciliate.

On October 19, 1984, LANI requested intervention from the National
Office to address the primary issues which had created an impasse

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in our negotiations. First as to the methodology utilized in identifying disparate treatment, LANI, maintains that a prima facie case has not been demonstrated. Secondly, LA takes the position that back pay liability has not been determines by reasoned case law or statutory authority (Tab 11). On November 9, 1984, the OFCCP's Dallas Regional Office responded to those arguments and invited LANL to resume negotiations (Tab 11).

3. Deficiency #11 of OFCCP's amended show cause notice dated May 16, 1984, regarding Los Alamos National Laboratory's noncompliance with the requirements of 41 CFR Part 60-2 charged LANL with disparate treatment against 120 minority and or female applicants

(internal and external) for advertised job openings. They were not selected even though they were better qualified than the nonminority male applicants who were selected, or they were qualified internal applicants during the external hiring freeze, but were not selected in favor of nonminority and/or male external applicants.

In regard to those 49 individuals who OFCCP found to be qualified internal applicants during an external hiring freeze, LANL responsed by denying that there was in fact any hiring freeze during which time LANL Policy restricted external hiring whenever qualified internal applicants were available. That response called it instead "A partial controlled hiring condition,'

"A period of Limited Hiring," and "A loose moratorium with regard to offers to external candidates" then it obfuscates the real

issue by raising the nonissue of "Best Qualified." The real issue is not whether or not the best qualified applicant should

have been selected but rather whether or not the field of consideration had been limited to internal applicants, so long as there were qualified internal applicants.

As to that issue, LANL Director Agnew's memorandum, dated January 8, 1979, whose subject was "outside hiring" and was addressed to those on the "Master Group and Division Leader List" states" "it is necessary for me to put a halt to all outside hiring until further notice," and "Effective January 8, 1979, any vacancies may be filled only by the transfer of current employees." Personnel Department Head Graydon A. Thayer's memorandum dated January 10, 1979, same subject, same addressees, cites "the director's decision to halt all outside hiring until further notice" and proceeds to explore some of the ramifications of that decision. He states that "requests to the director for exceptions will not be considered unless the position has been previously advertised in the bulletin to determine the existence of a Qualified Internal Candidate(s)." and "It will be necessary to clearly establish that efforts have been made to locate a suitable person internally." and that external "applicants will be advised that no referrals will be made to hiring officials for consideration, except for

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those positions that have been approved for outside hire by the Director." A subsequent memo issued by Director Agnew's memo dated January 12, 1979, specifically uses the term "hiring freeze." OFCCP is in posession of a rather large amount of documentation which contradicts LANL's response in this regard and establishes that there was a hiring freeze and that it did severely restrict external hires to only those instances where the hiring official had secured approval for an exception from the Director by stating that no qualified internal applicants were available. Such exceptions were sought and granted even though LANL's documents in the bid package indicated not only that the named minority or female was qualified but often that he/she was the better qualified

of other qualified minority or female internal applicants. Conversely, if there was a qualified nonminority male internal applicant

no exception was requested and he was selected to fill the vacancy. Therefore, OFCCP rejected LANL's response concerning the hiring freeze victims as being without merit.

With regard to cases #1 through #71 of Attachment B to the amended show cause the laboratory's initial case by case analysis was received by OFCCP on June 19, 1984, and thoroughly considered in preparation for the June 25-28 meeting in which each case was considered and discussed. As a result of that meeting OFCCP accepted LANL's arguments regarding 25 cases and 4 more were deleted because of reasons such as that the person was incorrectly identified as a minority, or the vacancy was never actually filled. LANL agreed to "conciliate" 10 cases leaving 32 of the original 71 still disputed. LANL then submitted, as part of its overall response to the amended show cause, a second case-by-case analysis of the disputed 32 cases. That submission was studied by OFCCP and worksheets on each case were prepared detailing OFCCP's position. Those were sent to LANL affording them the opportunity to examine them prior to our next meeting on September 6-7, 1984. That meeting was held and LANL agreed to conciliate 10 more cases, OFCCP agreed to yield on 12, leaving 10 still in dispute. The type of remedies which would be necessary to make all of the victims of disparate treatment whole were discussed and the negotiators for LANL requested from the OFCCP a proposed conciliation agreement and that depending upon the wording in the agreement, LANL would decide to conciliate the remaining 10 cases. Such a conciliation agreement was subsequently prepared and submitted to LANL but LANL took exception to its wording. With the cases, LANL agreed to conciliate and those still in dispute.

It is OFCCP's position that there are 31 affected class members who were better qualified but not selected. Those are the ones numbered as follows from Attachment B of the amended show cause

1.0

notice: 4, 7, 11, 16, 18, 19, 23, 24, 30, 31, 32, 34, 36, 41, 42, 12, 44, 45, 46, 47, 48, 49, 51, 52, 58, 61, 64, 66, 68, 69, and 71.

The following illustrations are only a few examples of why the
Laboratory's responses regarding the 10 cases still in dispute

are unacceptable.

In case #23 LANL tries to make the case that 8 years of relevant experience is better than 15 years of relevant experience, and that limited supervisory experience in a K-Mart and a drive-in grocery is more relevant than supervising and training new. employees in the functions of the jobs in the area where the advertised vacancy existed.

In case #24 LANL makes the statement that the selected applicant had more experience in administrative data processing, a statement which their own records dispute.

In #31 the LANL's response claims greater related experience for the selected applicant when their own records clearly show that the nonselected minority had the greater amount of related experience.

4. Deficiency: Although females have greater years of related experience than the nonminorities promoted, they were denied equitable promotional opportunities to Electronic Tech III during Fy-79 and FY-80. This disparate treatment in promotions is in violation of 41 CFR 60-1.4(a) and 41 CFR 60-2.1(b). During the two year review period, there were 48 promotional opportunities to Electronic Tech III. In the Electronic Tech II feeder group, there were 32 (218) females. Of the 32 females, 7 are affected class members based on the inavailability in the feeder group. LANL's rebuttal states that the primary criterion for promotions to a higher level in the TEC series requires three conditions: 1. higher level duties must exist in the organization 2. the supervisor must assign them to an employee

3. the employee must perform them successfully

LANL's rebuttal failed to address those factors listed above in that it has failed to demonstrate that:

1. higher level duties did not exist in the organizations in which the TEC II females were employed;

2.

that the supervisors did not assign those duties in a discriminatery manner;