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37 FLRA No. 105

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF THE AIR FORCE

3245th AIR BASE GROUP

HANSCOM AIR FORCE BASE

BEDFORD, MASSACHUSETTS

(Respondent)

and

RICHARD D. MARTINO

(An Individual)

1-CA-90275

DECISION AND ORDER

October 26, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions filed by the Respondent to the attached decision of the Administrative Law Judge. The General Counsel filed an opposition to the exceptions.

The complaint alleged that the Respondent violated section 7116(a)(1) and (2) of the Federal Service Labor-Management Relations Statute (the Statute) when it: (1) refused to rehire the Charging Party because he had engaged in union activity during his previous employment with the Respondent; and (2) stated to employees that the Charging Party would not be rehired because of the previous union activities.

The Judge found that the Respondent violated the Statute, as alleged in the complaint. The Judge noted, in this regard, that the case "turn[ed] i[n] large measure on the credibility of the witnesses involved." Judge's Decision at 18. The Judge, based on his credibility determinations and the record as a whole, concluded that the Respondent refused to rehire the Charging Party because of his prior union activities and that the Respondent stated so to other employees. The Judge concluded also that the reasons offered by the Respondent for its failure to rehire the Charging Party were "a pretext to mask the unlawful reason . . . ." Id. at 22.

The Judge's recommended Order requires the Respondent, among other things, to offer the Charging Party immediate and full employment and to make him whole for his losses.

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge made at the hearing and find that no prejudicial error was committed. We affirm the rulings. On consideration of the Judge's decision, the exceptions, ⁽¹⁾ and the entire record, we adopt the Judge's findings, conclusions, and recommended Order. ⁽²⁾

Accordingly, we conclude that the Respondent violated section 7116(a)(1) and (2) of the Statute by refusing to rehire the Charging Party because of his previous union activities and by stating to employees that the Charging Party would not be rehired for that reason.

II. Order

Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations, and section 7118 of the Statute, the Department of the Air Force, 3245th Air Base Group, Hanscom Air Force Base, Bedford, Massachusetts, shall:

1. Cease and desist from:

(a) Refusing to employ Richard D. Martino, or any other applicant for employment, because the applicant previously has engaged in or might, if employed, engage in activities protected by the Statute.

(b) Making statements to employees or applicants for employment that employment will be denied to a person who has engaged in or, if employed, might engage in activities protected by the Statute.

(c) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of rights assured them by the Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:

(a) Offer Richard D. Martino immediate and full employment in the position of Painter, WG-4102-9, as referred to in vacancy announcement 455-87, or a substantially equivalent position, and make him whole for the losses he incurred as a result of the refusal to reemploy him by providing him with backpay, with interest, from February 13, 1989, until such time as he is reemployed in compliance with this Order, and by providing him with all benefits and privileges retroactive to February 13, 1989, consistent with applicable law and regulation.

(b) Post at the Department of the Air Force, 3245th Air Base Group, Hanscom Air Force Base, Bedford, Massachusetts, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Base Commander and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by any other material.

(c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region I, 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.

NOTICE TO ALL EMPLOYEES

AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY

AND TO EFFECTUATE THE POLICIES OF THE

FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE

WE NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT refuse to employ Richard D. Martino, or any other applicant for employment, because the applicant has previously engaged in or might, if employed, engage in activities protected by the Statute.

WE WILL NOT make statements to employees or applicants for employment that employment will be denied to a person who has engaged in or, if employed, might engage in activities protected by the Statute.

WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of rights assured them by the Statute.

WE WILL offer Richard D. Martino immediate and full employment in the position of Painter, WG-4102-9, as referred to in vacancy announcement 455-87, or a substantially equivalent position, and make him whole for the losses he incurred as a result of the refusal to reemploy him by providing him with backpay, with interest, from February 13, 1989, until such time as he is reemployed in compliance with this Order, and by providing him with all benefits and privileges retroactive to February 13, 1989, consistent with applicable law and regulation.

______________________________
(Activity)

Dated:_________ By:______________________________

(Signature) (Title)

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 of compliance with any of its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, Region I, whose address is: 10 Causeway Street, Room 1017, Boston, Massachusetts 02222-1046, and whose telephone number is: (617) 565-7280.

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FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. The Respondent excepts to certain of the Judge's credibility findings. It is well established that the Authority will not overrule a Judge's determination regarding the credibility of witnesses unless a clear preponderance of all the relevant evidence demonstrates that the determination was incorrect. We have examined the record and find no basis on which to reverse the Judge's credibility findings. See, for example, Department of Health and Human Services, Social Security Administration and Social Security Administration Field Operations, New York Region, 34 FLRA 506 (1990).

2. The Respondent excepts to, but makes no arguments concerning, the Judge's recommended Order.

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