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 candidat. brought in at A higher 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

in cur negotiations. First as to the methodology utilized in
identifying disparate treatment, LANI, maintains that a prima
facie case has not been demonstrated. Secondly, LA sales the
position that back pay liability has not been determined 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

9

those positions that have been approved for outside hire by the Director." A subsequent memo issued by Director Agnew's memo date: January 12, 1979, specifically uses the term "hiring freezc." 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. 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.

Conversely,

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

10

notice: 4, 7, 11, 16, 18, 19, 23, 24, 30, 31, 32, 34, 36, 41.
4%, 13, 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 (21%) 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.

3.

the supervisor must assign them to an employee

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 discriminatory manner;

11

3. that the female employees did not perform the duties successfully.

LAH', Falattal states that only 3 of the 36 female Electronic
Techa.cian II's were providing technical support to research
and development programs. This statement is in contradiction
to the fact that 8 females were promoted to the Electronic Tech
III position. The OFCCP was aware that three promotions of female
Electronic Tech II to Electronic Tech III had taken place during
the review period. However, even with the eight promotions, the
OFCCP disclosed that disparate treatment in promotions against
females had taken place. LANL's rebuttal to this deficiency
was found not to be acceptable.

5. As for Deficiency #15 in the amended show dause notice, LANL's
response was found to be acceptable to OFCEP and that deficiency
is dismissed.

In view of the violations listed above and the fact that LANL has withdrawn from conciliation efforts, it is recommended that enforcement action be initiated.