43 FLRA No. 126

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION

SOUTHWEST REGION

AIRWAYS FACILITIES SECTOR

AUSTIN, TEXAS

(Respondent)

and

DAVID MCFARLIN

(Charging Party)

6-CA-01217

DECISION AND ORDER

February 14, 1992

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

The Administrative Law Judge issued the attached decision in the above-entitled proceeding, finding that the Respondent did not violate section 7116(a)(1) of the Federal Service Labor-Management Relations Statute (the Statute) by telling the Charging Party that he was not selected for promotion because of his union activities and that the Respondent did not violate section 7116(a)(1) and (2) of the Statute when it did not select the Charging Party for promotion. The General Counsel and the Charging Party filed exceptions to the Judge's decision and the Respondent filed an opposition to the General Counsel's and the Charging Party's exceptions.

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

II. Order

The complaint is dismissed.

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

*/ Both the General Counsel's and the Charging Party's exceptions pertain to the Judge's credibility findings on which his findings of fact are based. The demeanor of witnesses is an important factor in resolving issues of credibility. Only the Judge has had the benefit of observing the witnesses while they testified. We will not overrule a judge's determination regarding credibility of witnesses unless a clear preponderance of all the relevant evidence demonstrates that the determination was incorrect. We have examined the record carefully and find no basis for reversing the Judge's credibility findings. Department of the Air Force, Sacramento Air Logistics Center, McClellan Air Force Base, California, 35 FLRA 345, 346 n.1 (1990).

Consistent with section 2429.5 of the Authority's Rules and Regulations, we have not considered Exhibits 1, 2 and 3 attached to the Charging Party's exceptions. These exhibits are affidavits dated November 14, 1991, which describe an event that allegedly took place in August 1991, after the hearing in this matter closed and before the issuance of the attached decision. See U.S. Department of Treasury, Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Salt Lake City, Utah, 40 FLRA 303, 308-9 (1991), petition for review filed sub nom. U.S. Department of Treasury, Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Salt Lake City District, Salt Lake City, Utah v. FLRA, No. 91-1287 (D.C. Cir. June 17, 1991).

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