18:0142(24)CA - DOD, Air Force, HQ 47th Flying Training Wing (ATC), Laughlin AFB, TX and AFGE Local 1749 -- 1985 FLRAdec CA
[ v18 p142 ]
18:0142(24)CA
The decision of the Authority follows:
18 FLRA No. 24
UNITED STATES DEPARTMENT OF DEFENSE
DEPARTMENT OF THE AIR FORCE
HEADQUARTERS 47TH FLYING TRAINING
WING (ATC)
LAUGHLIN AIR FORCE BASE, TEXAS
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1749, AFL-CIO
Charging Party
Case No. 6-CA-30446
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, finding that the Respondent had engaged in
certain unfair labor practices alleged in the complaint and recommending
that it be ordered to cease and desist therefrom and take certain
affirmative action. The Judge recommended dismissal of that portion of
the complaint alleging that the Respondent violated section 7116(a)(1)
and (2) of the Statute by not selecting the discriminatee for a job on
or about January 5, 1983, as such conduct occurred more than six months
prior to the filing of the charge. He also recommended dismissal as to
allegations concerning the conduct of one of the Respondent's
supervisors or management officials, as the evidence did not establish
any involvement by him during the six months prior to the filing of the
charge. Noting the absence of exceptions in this regard, the Authority
adopts these recommendations and, as the Judge inadvertently neglected
to do, has modified the Order to dismiss those portions of the
complaint. As to the remainder of the Judge's Decision, the Respondent
filed exceptions and a brief, and the General Counsel filed a brief in
support of its opposition to Respondent's exceptions.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's Decision and the entire record, the Authority hereby adopts the
Judge's findings, /1/ conclusions and recommended Order, /2/ as modified
herein. /3/
ORDER
Pursuant to section 2423.29 of the Rules and Regulations of the
Federal Labor Relations Authority and section 7118 of the Statute, the
Authority hereby orders that the United States Department of Defense,
Department of the Air Force, Headquarters 47th Flying Training Wing
(ATC), Laughlin Air Force Base, Texas, shall:
1. Cease and desist from:
(a) Refusing to promote Hector Guadarrama or any other employee
because of protected union activities.
(b) Considering the protected union activities of employees in making
determinations whether employees shall be promoted.
(c) In any like or related manner interfering with, restraining, or
coercing Hector Guadarrama or any other employee in the exercise of
rights assured by the Federal Service Labor-Management Relations
Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Retroactively promote Hector Guadarrama to the position of
Engineering Equipment Operator, WG-5716-10, reimburse him for the loss
of pay he suffered by reason of the failure to promote him on June 2,
1983, due to his protected union activities, and restore to him any
rights or privileges he may have lost by such action.
(b) Post at the United States Department of Defense, Department of
the Air Force, Headquarters 47th Flying Training Wing (ATC), Laughlin
Air Force Base, Texas, 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 an appropriate official 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 VI, 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.
IT IS FURTHER ORDERED that the remainder of the complaint in Case No.
6-CA-30446 be, and it hereby is, dismissed.
Issued, Washington, D.C., May 24, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT refuse to promote Hector Guadarrama or any other employee
because of protected union activities.
WE WILL NOT consider the protected union activities of employees in
making determinations whether employees shall be promoted.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce Hector Guadarrama or any other employee in the exercise of
rights assured by the Federal Service Labor-Management Relations
Statute.
WE WILL retroactively promote Hector Guadarrama to the position of
Engineering Equipment Operator, WE-5716-10, reimburse him for the loss
of pay he suffered by reason of the failure to promote him on June 2,
1983, due to his protected union activities, and restore to him any
rights or privileges he may have lost by such action.
(Agency or 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 or compliance
with its provisions, they may communicate directly with the Regional
Director, Region VI, Federal Labor Relations Authority, whose address
is: P.O. Box 2640, Dallas, Texas 75221, and whose telephone number is:
(214) 767-4996.
--------------------
S
For the General Counsel
Major Charles D. Beckenhauer
For the Respondent
Before: FRANCIS E. DOWD, Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding under the Federal Service Labor-Management
Relations Statute, herein referred to as the Statute, 92 Stat. 1191, 5
U.S.C. 7101 et seq. It was instituted by the Regional Director of the
Sixth Region of the Federal Labor Relations Authority by the issuance of
a complaint and notice of hearing dated January 26, 1984. The complaint
was issued following an investigation of an unfair labor practice charge
filed on September 28, 1983 by American Federation of Government
Employees, Local 1769, AFL-CIO, herein referred to as the Charging Party
or Union. The complaint alleges that United States Department of
Defense, Department of the Air Force, Headquarters 47th Flying Training
Wing (ATC), Laughlin Air Force Base, Texas, herein referred to as
Respondent, alleges that Respondent violated section 7116(a)(1) and (2)
of the Statute by the following conduct: (1) unlawfully considering
Hector Guadarrama's union activity in its selection deliberations on or
about June 2, 1983 and (2) not selecting Hector Guadarrama for promotion
to Engineering Equipment Operator, WG-5716-10 (Certificate Number LJ
063) because of his membership in and activities on behalf of the Union.
/4/
A hearing was held in Del Rio, Texas at which the parties were
represented by counsel and afforded full opportunity to adduce evidence
and call, examine, and cross-examine witnesses and argue orally. At the
request of the parties, the time for filing briefs was extended until
August 27, 1984. Briefs filed by the Respondent and the General Counsel
have been duly considered and have been helpful in resolving the issues
herein.
Upon consideration of the entire record in this case, including my
evaluation of the testimony and evidence presented at the hearing, and
from my observation of the witnesses and their demeanor, I make the
following findings of fact, conclusions of law, and recommended order.
Findings of Fact
1. The Union is a labor organization within the meaning of section
7103(a)(4) of the Statute.
2. The Respondent is an agency within the meaning of section
7103(a)(3) of the Statute. At all times material herein, the following
named persons occupied positions set opposite their respective names and
have been and are now agents of Respondent acting on its behalf, and are
supervisors and/or management officials within the meaning of section
7103(a)(10) and (11) of the Statute.
Lt. Col. Harvey Manekofsky, Base Civil Engineer
Janet Branch, Civilian Personnel Officer
Staff Sgt. James P. Childs, Supervisor, Civil Engineer Section
Master Sgt. Richard B. Ford, Supervisor, Civil Engineer Section
3. At all times material herein, Respondent has recognized the Union
as the exclusive collective bargaining representative of the following
described unit:
INCLUDED: All non-supervisory personnel, both GS and Wage
Board, serviced by the Civilian Personnel Office, Laughlin Air
Force Base, Texas.
EXCLUDED: Supervisors, Guards, Professionals, temporary
employees and personnel employees other than those in purely
clerical positions.
Since 1978, and at all times material thereafter, the Union and
Respondent have been parties to a collective bargaining agreement
covering employees in the unit described above.
4. Hector R. Guadarrama is employed by Respondent as a Tractor
Operator. For approximately the past 11 years, Guadarrama has also
served as vice-president of the Union. In that capacity, Guadarrama has
represented employees on grievances, discrimination cases, and safety
matters. Guadarrama has also served as a negotiator for the Union in
contract negotiations and, in addition, assumes the duties of president
of the local when the current president is absent. There is no dispute
that Guadarrama has engaged in protected activity and that Respondent
and its agents had knowledge thereof.
5. In the latter part of 1982, an opening occurred for a WG-11 Crane
Operator in Guadarrama's work area. A certificate of employees "fully
qualified" /5/ for this position subsequently issued which contained the
names of three employees. These employees were John Strange, a WG-10
Heavy Equipment Operator; Nacho Hernandez, an Inspector who declined
the position, and Guadarrama. During the course of the selection
process, Guadarrama was interviewed for the position by SSgt. Childs and
Senior Master Sergeant Moore. Guadarrama was informed in the interview
by Moore that if he were not selected for the WG-11 Crane Operator
position he stood a pretty good chance of being selected for the WG-10
Heavy Equipment Operator job when Strange vacated that position.
Thereafter, Respondent selected John Strange for the WG-11 Crane
Operator position.
6. As a result of Strange's selection, his current position of WG-10
Heavy Equipment Operator became vacant. At that point, Respondent
issued a certificate of employees "fully qualified" for the position.
/6/ Guadarrama's name was the only name on the certificate and he was
subsequently interviewed for the position by SSgt. Childs. Following
the interview, Guadarrama heard nothing for approximately 15 days
regarding whether or not he had been selected for the position.
Consequently, he then asked Mr. B. Flores of the Personnel Department
what had happened to the certificate since in accordance with the merit
promotion plan the certificate was supposed to be returned within five
days. At that time Guadarrama was advised by Flores that the area of
consideration for the position had been extended. The Union was later
provided with a copy of a letter dated January 5, 1983 from Lieutenant
Colonel Harvey Manekofsky, the Base Civil Engineer, in which he
requested the Base Civilian Personnel Office to request authorization
from the Office of Personnel Management to expand the area of
consideration (Jt. Exh. No. 2). /7/ Thereafter, on January 31, 1983,
Respondent requested additional names from the Office of Personnel
Management, although Respondent only infrequently follows such a
practice. /8/ On February 28, 1983, the Office of Personnel Management
granted Respondent's Civilian Personnel Office authority to recruit
applicants from the local commuting area. The Civilian Personnel Office
then issued certificate number LJ-063, dated May 4, 1983, containing
additional names of three applicants (Vasquez, Bowers and Gonzales) from
the local area.
7. Subsequently, Guadarrama was told by his supervisor to report to
Msgt. Ford for an "interview." Ford had become the selecting official
for the position since he assumed the position of Supervisor in the
Heavy Equipment Section in the Civilian Engineering Squadron in the
latter part of January 1983. (It should be noted, however, that Childs,
who previously interviewed Guadarrama, was still working in the section,
under Ford.) When Guadarrama arrived at Ford's office, he was directed
to a small room in the back of the building where, according to
Guadarrama, he was told that he had "to take a test." /9/ He was given a
set of questions, as follows:
1. Describe in your own words the kinds of work which can be
done with each of the following:
a. Dump Truck
b. Road Grader
c. Front-End Loader (with clamshell or 4 in 1 bucket)
d. Front-End Loader
e. Steel Wheel Roller
f. Rubber Tire Roller
g. 20-ton Mobile Crane
h. Backhoe
2. Describe some of the primary controls and how they are used
to do the work described above for each of the following: (same 8
pieces of equipment listed)
3. Describe some of the dangers associated with each of the
following: (same 8 pieces of equipment listed)
4. Describe some of the safety equipment used by heavy
equipment operators.
5. Describe some of the safety practices which should be
considered when operating each of the following: (same 8 pieces
of equipment listed)
6. Describe some of the basic procedures for operator's
pre-start checkout and operator's maintenance for each of the
following: (same 8 pieces of equipment listed)
7. List briefly any work that you have done with the
following: (same 8 pieces of equipment listed)
By my count, the foregoing adds up to 57 questions. The
uncontradicted testimony of Guadarrama in that he took 2 1/2 hours to
finish the written test, at which time he informed Ford that, in his
opinion, it was improper to require a written test. In Guadarrama's
presence, Ford then called Mr. B. Flores, who works in staffing. Flores
confirmed that written tests were not permitted. Ford apologized but
stated that, instead, he would give an oral test. Guadarrama tore up
his written test responses and threw them in the trash; they were not
reviewed by Ford.
8. Subsequently, on a different day, Ford again "interviewed"
Guadarrama, this time asking him orally the same questions which were on
the previous written test. Ford confirms the foregoing (Tr. 104). I
conclude this was an oral test. According to Guadarrama, Sgt. Ford did
not indicate on this occasion that he had any problems with Guadarrama's
responses. According to Ford, upon completion of the "interview"
Guadarrama was "definitely" still in competition for selection. The
oral test lasted 45 minutes. Ford then informed Guadarrama that he
would also be required to demonstrate his practical skill by operating
one of the pieces of the equipment, but that since all of the equipment
was in the motor pool he would have to do this at a later time.
9. Two or three days later, and notwithstanding the fact that there
still was a limited choice of equipment available, Ford approached
Guadarrama and gave him the choice of either demonstrating his skill on
the backhoe or waiting until more equipment was available so that he
could choose a different piece of equipment. Guadarrama chose to
operate the backhoe. /10/ Guadarrama then proceeded to operate the
backhoe in accordance with Ford's instructions, demonstrating how he
would dig a ditch and load the dirt on a dump truck. /11/ Guadarrama
testified that Ford did not indicate he had any problems with
Guadarrama's operation of the backhoe. This testimony is unrefuted. In
response to a leading question on direct examination as to whether
Guadarrama was still a candidate for selection after showing his
proficiency on the backhoe, Ford replied: "Certainly, he did very well.
Yes." /12/ He then was asked whether he talked to anyone about his
thoughts at the time. To this, Ford promptly replied that he talked to
John Strange, in whose judgment he had very profound faith, and told him
that unless anything cropped up in the future interviewees he (Ford)
would be "quite content to hire Hector." Strange said he felt Hector
would be fine, he had worked with him in the past and could foresee no
problems. Strange did not testify.
10. The Nonselection of Guadarrama
a. Thereafter, on June 2, 1983, Ford selected Rojelio V. Vasquez for
the position. A letter (Jt. Exh. No. 5) was sent from Ford to
Guadarrama on that date informing him of the selection. Once Guadarrama
received the letter he requested that Ford meet with him to discuss the
reasons for his nonselection. Ford and Guadarrama then met to discuss
the matter. During the discussion Ford stated that he felt Vasquez was
better qualified for the position. Guadarrama replied that he did not
understand how this could be the case since he already worked at the
base, operated the heavy equipment, and had his government operator's
license. However, Ford continued to state that he felt Vasquez was
better qualified.
b. The foregoing conversation concerning why Guadarrama was not
selected then turned to a seemingly different topic raised by Ford.
Thus, Ford then suggested that Guadarrama should start thinking about
looking for another job in the "white-collar" area. Ford said: "You
are a pretty good fighter. You like to get involved. You should think
about going into the (sic) GS position." By "fighter," Ford explained--
according to Guadarrama-- that "I was pretty good at handling cases,
grievances, and being a Union official." Further, Ford said "I would do
pretty good in a labor relation (sic) position."
c. A difference between the testimony of Guadarrama and that of Ford
is when this conversation took place-- on this occasion or at a
different time. I credit Guadarrama's testimony as to when it occurred.
The General Counsel argues that, because this conversation occurred
when Guadarrama was inquiring why he was not selected, I should infer
that Guadarrama's Union activities were a motivating factor in the
decision not to select him. I agree with the General Counsel. From
Guadarrama's own testimony it is quite clear that Ford initially was
careful to merely respond that Vasquez was "better qualified" without
answering Guadarrama's inquiry as to why he (Guadarrama) was not "better
qualified." Faced with Guadarrama's persistent questioning, Ford then
brought up the subject of Guadarrama seeking a different career. In so
doing, Ford indicated a state of mind; i.e. his preoccupation with
Guadarrama's representational duties for the Union.
d. Indeed, the mere fact that Ford brought up the subject of
Guadarrama's union activity-- even at a different time-- shows knowledge
of Guadarrama's activities, abilities and interests to a much larger
extent than admitted in his testimony. Whenever Guadarrama had to
represent someone, he had to obtain permission from his supervisor whose
desk is located across from Ford's. Obviously, Ford had to be aware of
the time spent by Guadarrama in such activity.
11. Richard Cary is a laborer. In the past, he worked with
Guadarrama. He testified with respect to two incidents, each of which
the General Counsel relies upon to show that Respondent's decision not
to promote Guadarrama was motivated by Guadarrama's activities on behalf
of the Union.
a. The first incident is particularly critical to the General
Counsel's case because it involves a conversation overhead by Cary in
which he relates what the selecting official, MSgt. Ford, is alleged to
have said. In its brief, Respondent attempts at great length to attack
Cary's credibility. /13/ I am satisfied, however, that Cary was telling
the truth when-- a year after the events in question, and perhaps six
months after giving an affidavit /14/ during the investigation of the
charge-- he was able to recall (1) what Sgt. Ford said to Sgt. Childs,
(2) where the conversation took place, and (3) approximately when it
occurred in relation to the selection decision. /15/ Based upon my
observation of Cary and his demeanor at the hearing, plus my careful
review of his testimony in the light of Respondent's detailed brief, I
credit Cary's testimony and find, as follows: On or about June 1, 1983
Cary entered a building which contains, inter alia, a bathroom, a break
room with a picnic table, and an office with desks of Sergeants Ford,
Childs and Salinas. After washing his hands, Cary stopped at the candy
machine where he bought some candy. The machine is located adjacent to
the entrance occupied by the Sergeants. As he stood in the hallway,
Cary could see Ford, who was facing towards the desk of Salinas. Cary
heard two voices: Ford's and Childs'. Ford was speaking to Childs.
According to Cary:
And at that particular time they had said something in the
effect of Hector couldn't be there or couldn't come in-- and it
says because of his Union activities he was never around and they
didn't need somebody who was not going to be working there and not
show up for work. They need somebody who would always be there.
And his Union business was always conflicting with his job.
The "they" to whom Cary was referring apparently was Ford, because
Cary consistently testified that he couldn't understand anything said by
Childs who was sitting around the corner out of his direct sight. Cary
admits that he came into the middle of a conversation, neither hearing
anything before or after the portion dealing with Guadarrama. /16/ On
cross-examination Cary enlarged on his direct testimony, specifically
recalling that "Sergeant Ford had said to the effect: No, he would not
be good; Hector can't do it because he is always in Union business; he
is never there . . . . I heard him (Ford) say Hector would not be
qualified because his Union business got in the way." (Tr. 74, 75). He
didn't hear Childs' reply, and after this "the phone rang or something,
because then they started talking about work, and then everybody started
showing in (sic) and we all left for lunch." To the extent Ford denies
having this specific conversation, I do not credit him.
b. The second incident occurred about two weeks later. On
cross-examination it was brought out that Cary asked quite a few people
why Guadarrama had not been promoted. On this particular occasion he
confronted Sgt. Childs in the break room at lunchtime, in the presence
of Airman Kurt Tustin and others. Cary testified: "And I had just
asked him (Childs) point out blank, you know, what was the deal. How
come Hector didn't get hired? Why didn't he get the job? And they told
me straightforward it was because his Union stuff always got in the way
and he was never going to be there and they weren't going to pay anybody
who wouldn't show up for work." On cross-examination Cary was asked
specifically what words were used by Childs. Cary replied: ". . . it
would be a shame, it would be a waste; because he is never around." I
infer from this that Childs was referring to Guadarrama's absences
conducting union business. According to Cary, Tustin added "something
to the effect of: Yeah; well, he is always doing Union stuff and he is
never around. Why are we going to pay somebody who is not going to be
here. We have got work to do."
c. Childs did not testify. Tustin testified that he recalled the
incident and recalled Cary asking why Guadarrama didn't get a job. His
version, however, is that Childs "didn't say nothing" and all he
(Tustin) did was agree with a statement by Airman Ira Keith Steward that
Guadarrama "is never around anyhow." Steward testified that he didn't
recall this specific incident but admits having commented-- on some
occasion-- that he hardly ever saw Guadarrama round. Respondent
contends the more probable version is that related by Tustin; i.e.
Childs said nothing and any remarks by Steward and Tustin omitted
reference to "union activities." What I regard as most significant about
Tustin's testimony is the fact there actually was an occasion when Cary
inquired why Guadarrama had not been selected for promotion and that it
was in the break room. Thus, to this extent, Cary's testimony is
corroborated except to what was said and by whom. Childs, an admitted
supervisor and/or management official, albeit not the selecting
official, worked under Ford and is the one who originally interviewed
Guadarrama before a decision was made to expand the area of
consideration. (Ford conceded that he "very probably" discussed his
selection with Childs but insisted he didn't recall any specific
conversation.) Childs did not testify and from this record I cannot
conclude he would have remained silent during Cary's questioning, as
suggested by Tustin. (See Tr. 56, lines 2-6.)
d. Based upon my observation of the demeanor of these witnesses, and
my review of their testimony, I credit the version given by Cary on
cross-examination. In other words, Childs' remarks were limited to
saying "it would be a shame, it would be a waste, because he is never
around." I find that "never around," in this case, is a euphemism
referring to Guadarrama's union activities. The more direct and
specific reference to union activities was made by Tustin, rather than
Childs. While I do not credit Tustin's version where in conflict with
Cary, I note his admission that he used the term "never around" in
referring to Guadarrama. Of course, Tustin is not an agent of
Respondent and may only have been voicing his personal opinion, even
though made in the presence of Childs, who did not disavow it.
12. Requirements For the WG-10 Position
Joint Exhibit No. 11 is a position description for Engineering
Equipment Operator. It lists the following equipment: (a) graders, (b)
bulldozers, (c) front-end loaders, (d) small industrial tractors, (e)
20-ton truck mounted crane, (f) roller, (g) wheel mounted trenching
machine, (h) Wayne vacuum sweeper, (i) farm tractors with backhoe, and
(j) 5 to 10-ton tractor truck pulling 25 to 40-foot trailers. The
recruitment bulletin (Jt. Exh. No. 14) with an opening date of March 16,
1983 and a closing date of March 29, 1983 listed (a), (b), (c), (d), (e)
and (h) above. Although the backhoe was not specifically mentioned, it
appears that this is an attachment used on a farm tractor (para. 7 of
Jt. Exh. No. 11). A roller is pulled by a tractor. The bulletin
specified that competitors would be rated on "the extent and quality of
their experience and training based upon their statements and any
additional information." As previously discussed. Guadarrama and 3
others were certified as "fully qualified" for the WG-10 position. In
addition, as noted previously, Guadarrama also was rated "fully
qualified" for a WG-11 position.
13. Guadarrama's Qualifications
a. Guadarrama testified, without contradiction, that he was trained
by George Tilson, a WG-11 Crane Operator, on the following: sweeper,
backhoe, front-loader and dump truck. I note that Tilson's name is
listed as a "qualifying official" on Guadarrama's U.S. Government Motor
Vehicle Operator's Identification card. This card also lists the
following equipment he is qualified to operate: backhoe, 1/2-tone cargo
truck, tractor, forklift, dump truck, and front-end loader. The other
equipment listed is not legible. Guadarrama's current job requires this
license. The only pieces of equipment he is not licensed to operate are
the crane, grader and one of the loaders.
b. Joint Exhibit No. 16 is a copy of Guadarrama's form 171 Personal
Qualifications Statement. It shows that he was born in 1949 and
graduated from high school in 1969. (Not shown on this form is the fact
that Guadarrama has also taken college courses, but to what extent the
record is not clear.) From May 1966 to July 1968 he performed seasonal
work; he drove trucks and combines while harvesting wheat. From May to
August 1969, he was a steelworker. From August 1969 to August 1971, he
was a combat medic and drove an ambulance in the U.S. Army. This form
171 was signed and dated August 24, 1971. He testified that he has been
employed by Respondent "almost 15 years", the last 8 years a Tractor
Operator. His duties include mowing the airfield, base grounds and gold
course with a variety of mowers. He uses self-propelled equipment, such
as powered edgers, weedeaters and pushmowers. He sets out pipes,
connects and disconnects sprinklers and hoses, and performs manual tasks
such as trimming trees and shrubs.
c. A continuation sheet attached to his form 171, and dated February
17, 1976, discloses that during the months of September, October and
November of 1967, he worked every weekend operating the backhoe,
Bulldozer and frontloader in Mexico. He did likewise for the entire
month of December 1967 and again for two weeks in January 1969. He
apparently was given credit for such experience, particularly in view of
the fact that his name appeared as "fully qualified" on both the WG-11
and WG-10 Merit Promotion Certificates.
d. Guadarrama testified that he has an "emergency essential"
position whereby civilian employees like himself operate heavy equipment
when military personnel are away on training exercises. This occurs 2
or 3 times per year. About 80 to 125 employees have been given this
designation.
e. Guadarrama also testified that 3 or 4 times a month he worked
with the front-loader, backhoe, water truck, dump truck and tractor
trailer. He has done this for the past 5 or 6 years. To operate these
types of equipment requires a license and it is necessary to obtain
permission from MSgt. Ford, his predecessor SSgt. Childs, or someone in
that office. Although Ford denies any specific knowledge of
Guadarrama's use of such equipment, I do not believe him. When I
consider how thoroughly and how methodically Ford checked with the
personnel office and read manuals to discover what he could and could
not do in carrying out his responsibilities as a selecting official, I
believe it would be out of character for him not to become fully
acquainted with Guadarrama's reputation and his qualifications to
operate heavy equipment. One source of information was SSgt. Childs who
was assisting Ford during this entire period. Indeed, when Ford was
first informed that a decision was made to go outside the agency for
additional applicants, the logical first question for Ford was to
inquire why Guadarrama had not been selected. I simply have to infer
that Ford was briefed by Childs as to Guadarrama's qualifications. /17/
But even without this inference, the fact remains that Guadarrama was
given an oral test concerning all the applicable equipment. As a result
thereof, Ford was even more fully informed about Guadarrama's
qualifications, and can hardly assert-- as Respondent does-- that Ford
was relying solely on the form 171 application. Finally, Guadarrama's
supervisor was located in close proximity to Ford, so Ford had this
additional source of information. Under all the circumstances, I infer
and conclude that Ford knew of Guadarrama's experience with heavy
equipment before he made his decision to select Vasquez.
14. Qualifications of Vasquez
a. Ford testified that all four candidates were "probably competent
to take the job." In fact he claims he had a real dilemma and he told
personnel any of the four people" could have filled the position," and
asked whether there were any other considerations he should be thinking
about in making the selection. He was told it was his decision to make,
but he should be prepared to justify it, if ever called to explain.
Ford claims he made the decision to select Vasquez because (1) he had
been to a military equipment school, (2) he had worked in the military
heavy equipment field in the Marine Corps, and (3) he was currently
working in a job which he operated heavy equipment on a daily basis.
Respondent argues that I should accept Ford's explanation and conclude
that Respondent has sustained its burden of establishing that even in
the absence of any unlawful motive, Ford would not have selected
Guadarrama anyway because Vasquez was a "natural choice."
b. Although currently employed by Respondent, Vasquez was not called
as a witness. Accordingly, our knowledge of his qualifications is
somewhat limited. Ford did not relate what information he learned from
his interview. However, we do know that the conversation with someone
in personnel occurred after the interview and at that stage all four
candidates were competent and could have filled the job. (Whatever
reluctance I may have to accept this evidence because it came from Ford,
the fact remains that no contrary evidence was adduced by the General
Counsel.) Ford's testimony as to Vasquez is conclusionary and does not
provide any specific information in addition to what appears in the
SF-171 of Vasquez.
c. The SF-171 reveals that Vasquez was born in 1955, completed 10th
grade, and served in the U.S. Marine Corps from June 3, 1974 to March
14, 1977. After completing basic training at Camp Pendleton, California
from June to August, he was assigned to Camp Le Jeune, NC, where he
attended a Heavy Equipment school for what appears to be about three
months. Here he learned to operate the following: forklifts, jeeps,
tractor trailers, tank trucks, semi-trailers, cranes, sweepers,
bulldozers, graders and loaders. From November 1974 to November 1975,
he was classified as an Engineer Equipment Operator at Camp Pendleton
where he states that he operated bulldozers, graders, front-end loaders,
forklifts and cranes. Precisely how much of his time was actually spent
in operating each piece of equipment is not disclosed. His next
assignment was in Okinawa from November 1975 to March 1977. His job
title was unchanged. He states he drove jeeps, tractor trailers, tank
trucks, semi-trailers, cranes, sweepers, bulldozers, graders and
front-end loaders. From the date of his discharge in March 1977 until
April 1979, Vasquez was unemployed. He then obtained a job as a Truck
Driver with Ingram Readymix in Del Rio, Texas. (Laughlin AFB is located
near Del Rio.) His beginning salary was $3.50 per hour; his salary when
he completed the SF-171 on March 28, 1983 was $5.00 per hour. His
duties were to operate a concrete mixer, tractor and loader. The WG-10
position he was applying for paid $8.64 per hour plus, of course, all
the benefits accorded federal employees.
d. Nowhere in the SF-171 is the backhoe listed. There is testimony
from another witness, also named Rojelio Vasquez, that after Vasquez
(the selectee) reported to work he had a problem on one occasion in
August or September operating the backhoe to dig up a gas valve so that
the plumbers could disconnect a gas line. At one point, selectee
Vasquez asked the plumbers to bear with him since it was only the second
time he had operated this type of equipment. He then commented further
that "I guess I learn here." The witness, on cross-examination,
disclosed that Guadarrama had represented him in a case resulting in his
receiving $15,000. /18/
Discussion and Conclusions of Law
A. Applicable Statutory Provisions
Section 7116(a)(1) and (2) of the Statute provides that it shall be
an unfair labor practice for an agency to (1) interfere with, restrain,
or coerce any employee in the exercise by the employee of any right
under this chapter, and (2) to encourage or discourage membership in
labor organization by discrimination in connection with hiring, tenure,
promotion, or other conditions of employment.
B. Applicable Case Law
In Internal Revenue Service, Washington, D.C., 6 FLRA No. 23, 6 FLRA
96 (1984), the Authority adopted the standard established in Mt. Healthy
City School District Board of Education v. Doyle, 429 U.S. 274 (1977)
for the determination of a section 7116(a)(1) and (2) violation of the
Statute. /19/ There, the Authority held that the burden is on the
General Counsel to make a prima facie showing that the employee had
engaged in protected activity and that this conduct was a motivating
factor in agency management's decision not to promote. Once this is
established, the Authority held that the agency must show by a
preponderance of the evidence that it would have reached the same
decision as to the promotion even in the absence of the protected
conduct. The Authority has subsequently found violations of section
7116(a)(1) and (2) of the Statute and of independent violations of
section 7116(a)(1) of the Statute in cases where the Activity
discriminated against employees in various ways because of their union
activities. /20/
C. Respondent's Defense
Respondent denies that Guadarrama's protected activity was a
motivating factor in his nonselection. Even assuming it was a factor,
Respondent asserts as an affirmative defense that Vasquez would have
been selected in any event because he was, as Ford testified, the "best
qualified" of the four candidates. Stated differently, Respondent is
contending that Guadarrama would not have been selected, even in the
absence of any unlawful motivation. For the reasons more fully
discussed below, Respondent's defense is rejected.
D. Whether Guadarrama's Union Activity Was A Motivating Factor In
Ford's Decision Not To Select Him For Promotion
Respondent concedes that Guadarrama has engaged in protected union
activity and that the selecting official (Ford) was aware of it. The
issue is whether protected union activity was a motivating factor in the
decision to select Vasquez instead of Guadarrama as denied by Respondent
or the motivating factor as contended by the General Counsel.
1. In paragraph 10 of my "Findings of Fact," I discussed the meeting
at which Guadarrama asked Ford why he was not selected. Based upon
Guadarrama's own testimony, the topic of conversation changed from (1)
his nonselection to (2) his qualifications for a GS position. In my
opinion it is significant that Ford brought up the subject of
Guadarrama's qualifications for a completely different type of work at a
time when Guadarrama was having difficulty understanding his
nonselection. There's a world of difference between Guadarrama's
current job of driving a tractor pulling a mowing machine and Ford's
suggestion that he seek a completely different line of work; i.e. a
white-collar job in which Guadarrama could utilize his abilities as a
"fighter" and good union representative. To me, Ford's initiation of
this subject indicates his state of mind at that time. Thus, Ford's
attention was focused on Guadarrama's Union activities rather than upon
his potential as a Engineering Equipment Operator. According to Ford's
own testimony, Guadarrama did well on the oral test and the
demonstration of the backhoe, and was one of four "competent"
candidates, any one of whom could have filled the position (Tr. 107).
Assuming this all to be true, it hardly makes sense to be encouraging
Guadarrama to be changing jobs, rather than encouraging him to be
patient and await the next opening for a heavy equipment operator.
Besides, review of Guadarrama's form 171 does not provide any other
basis for concluding that Guadarrama's experience could successfully
qualify him for a "white-collar" job. Therefore, Ford's remarks were
based upon some other knowledge. I conclude that Ford's remarks to
Guadarrama, in the context in which they were made, constituted a clear
reference to his union activities.
2. In paragraph 11 of my "Findings of Fact," I discussed the two
incidents about which Richard Cary testified. The first incident
involved Ford's remarks to Childs on or about June 1. The second
incident occurred two weeks later when Cary confronted Childs to the
presence of Tustin and others. Ford specifically referred to
Guadarrama's union activities and Childs used the phrase "never around,"
a euphemism for union activities.
3. The evidence also establishes that Guadarrama was subjected to
different standards from the other applicants. He is the only one who
was required to take a written test. It is only because he knew his
rights and complained about this requirement that Ford had to check with
Personnel only to discover that Guadarrama was correct. What was Ford's
reaction after being advised he couldn't require a written test? He
concluded there was no impediment to an oral test. Accordingly, he
proceeded to do indirectly what he couldn't do directly-- masking his
true intentions by calling the test an "interview". Was Guadarrama the
only candidate required to be tested orally? We really don't know
because none of the other candidates testified and the only witness on
this subject was Ford. My overall impression of witness Ford is that he
was biased against Guadarrama because of his union activities and his
entire testimony was contrived to counter a strong case by the General
Counsel of Ford's disparate treatment of Guadarrama. Although Ford
testified (Tr. 104) that he gave the same oral test to the other
candidates, he did not disclose the circumstances involved, such as
where and when the so-called oral interview took place, its duration or
its specific results. In other words, his testimony was not for the
purpose of explaining what he learned about the candidates in terms of
their qualifications, but, rather, for the purpose of rebutting any
accusation of disparate treatment.
4. The evidence also establishes that Guadarrama was the only
candidate required to give a demonstration of his proficiency on a piece
of heavy equipment. Although Childs informed Ford that Guadarrama had
previously complained or grieved about such a requirement (Tr. 100),
Ford felt that he had not been similarly restricted in the past so he
checked with Flores in Personnel. Ford said he "spent some time
researching the Manual and I found a line in there which said that we
could offer people the opportunity to demonstrate their proficiency on
the equipment." Of course, in personnel jargon there is supposed to be a
difference between (1) being given an opportunity to demonstrate and (2)
being required to demonstrate-- especially where an applicant has
already been certified as fully qualified based upon Personnel's
evaluation of the applicant's experience. As previously noted in
footnote 10, I am of the opinion that the manner in which Ford presented
this "opportunity" twice to Guadarrama really made it appear like a
"requirement," especially since it was Guadarrama who initially objected
to Childs about such demonstrations. In effect, Ford was saying to
Guadarrama that his objections were lacking in merit because he (Ford)
had checked with Personnel and found authority for what he wanted to do.
This was a not too subtle way of letting Guadarrama know who was the
boss.
Forced to explain why Guadarrama was the only candidate required to
demonstrate his proficiency on heavy equipment, the best that Ford could
do was to insist he wanted to give the candidates a "choice" of
equipment which he couldn't do because a lot of the equipment was in the
shop for repairs. Although the backhoe was available, he wanted to
offer them a choice. This weak explanation must, of course, be
rejected. It doesn't make sense. All he had to do was treat the other
three candidates the same way he treated Guadarrama, namely by informing
them of his desire for a demonstration and the fact that there was not a
choice of equipment available, but there was a choice of whether they
wanted to operate-- or not operate-- the backhoe. As set forth in
footnote 11 supra, Ford's reasons for desiring a proficiency
demonstration are quite reasonable and believable. "What I learned by
seeing these on a piece of equipment of any kind is a combination of
hand, foot, and eye coordination that one must have to be able to learn.
Some people have it; some people don't." In view of the importance
Ford himself places on the demonstration of proficiency, I find it
simply incredible that he could proceed to make his selection without
seeing for himself whether the other candidates could satisfactorily
demonstrate they had the proper combination of hand, foot and eye
coordination. Yet, without obtaining this valuable information, Ford
testified that all the candidates were competent and qualified. His
testimony is suspect; his explanation is not believable; and I
conclude that the demonstration of proficiency was just another step in
the obstacle course that faced Guadarrama and not the others. The
written test, the oral test, and the proficiency demonstration were all
designed to help Guadarrama eliminate himself from the competition by
performing poorly. Apparently this strategy did not work.
E. Respondent's Affirmative Defense: Guadarrama Would Not Have Been
Selected Because Vasquez Was Better Qualified
I have concluded that Guadarrama's protected union activity was
considered by Ford in making his selection decision. This constitutes
an independent violation of section 7116(a)(1) regardless of what
disposition is reached with respect to the alleged violation of section
7116(a)(2). /21/ The next issue to be resolved is whether Respondent
has proven by a preponderance of the evidence that Vasquez was better
qualified and therefore Guadarrama would not have been selected anyway.
1. The objective evidence offered by Respondent is limited to Joint
Exhibit No. 17, Vasquez' SF-171. See paragraph 14(c) of my "Findings of
Fact," supra. Ford said he was impressed with the fact that Vasquez
attended a heavy equipment school while in the Marine Corps and had
actually worked in the military heavy equipment field in the Marine
Corps. While I agree that Vasquez had training and experience in the
military service, the fact of the matter is that Guadarrama also had
training and experience which essentially was obtained more recently and
was on equipment at Laughlin Air Force Base. (In the light of the
remainder of Ford's testimony on the subject of experience, the mere
fact that Vasquez received "military" training is not significant.)
Moreover, Vasquez was discharged from the service in March 1977 so any
experience he had on the more difficult pieces of heavy equipment was
six years in the past. Furthermore, the SF-171 for Vasquez does not
indicate how much of his time was spent on each piece of equipment.
It's one thing to merely list a variety of machines but it's more
informative and persuasive to disclose which machines were operated on a
regular basis and which on a sporadic basis. The record does not
indicate whether Personnel verified the information on the SF-171 or
whether it rated Vasquez fully qualified merely based upon his own
assertions. Vasquez did not testify and Ford did not relate what, if
anything, he learned from the oral test. (The burden of producing such
evidence is upon Respondent.) In contrast, MSgt. Moore told Guadarrama
he stood a good chance of getting the WG-10 job if he didn't get the
WG-11 Crane Operator position. Guadarrama had been trained on various
pieces of equipment by Tilson, as reflected on his license. He also
occupied an emergency essential position and was familiar with the
equipment at the Base.
Ford's asserted reliance on the "military" experience of Vasquez is
inconsistent with Ford's testimony that each piece of equipment has its
own peculiarities and characteristics and, for this reason, he expected
to train everybody on each piece of equipment. /22/ Accordingly, it
would seem that experience six years in the past is as much ancient
history as that of Guadarrama in Mexico before 1970. According to Ford
he could teach somebody to operate equipment, but what he needed was
someone who possesses the right combination of hand, foot and eye
coordination. However, this is not information one receives from
reviewing a form 171. Even more significant, however, is the fact that
Vasquez was unemployed for two years after his discharge. We don't know
how competent Vasquez was in the service, and since he did not testify,
there is no explanation in this record why he was unable to obtain a
civilian job where he could utilize his experience and maintain his
skills.
Ford also felt that the current experience of Vasquez was a factor in
his selection, but the job being sought by Vasquez did not require
operating a cement mixer, and both Vasquez and Guadarrama could operate
a tractor and loader. Besides, the record does not indicate how much of
Vasquez' time was spent operating each piece of equipment in his
civilian job. His job title was Truck Driver and his low salary of
$5.00 per hour could be reflective of his skills, his level of
responsibilities, low area wage rates, or some combination of these. In
any event, his current experience is not that impressive and does not
persuade me that this is sufficient to tip the scales in favor of an
applicant from outside Respondent's own organization.
Based upon my review of the entire record, my consideration of the
excellent briefs submitted by both counsel, and my comparison of the
qualifications of both Guadarrama and Vasquez, it is my conclusion that
Respondent has not sustained its burden of proving by a preponderance of
the evidence that Vasquez was the best qualified of four candidates and
would have been selected over Guadarrama. Respondent's affirmative
defense is therefore rejected.
F. Direct Causal Relationship Between Respondent's Unlawful
Motivation and Guadarrama's Nonselection
Based upon my review of the entire record in this proceeding I
conclude (1) that there was a direct causal relationship between
Respondent's unlawful consideration of Guadarrama's protected union
activity and his nonselection for promotion, and (2) that but for
Respondent's consideration of Guadarrama's protected union activity, he
would definitely have been selected for promotion to the position of
WG-10 Heavy Equipment Operator. In particular, the following factors
are noteworthy:
1. Personnel rated Guadarrama as fully qualified for the higher
graded and more difficult position of WG-11 Crane Operator.
Understandably, the person selected (John Strange) was already at the
WG-10 level. However, MSgt. Moore (a senior to Ford and Childs) told
Guadarrama he stood a pretty good chance of being selected for the WG-10
position when Strange vacated that position.
2. Guadarrama's name was the only one on the certificate for the
WG-10 position. He was rated fully qualified. He was interviewed by
Childs, the same person who later told Cary: "it would be a shame, it
would be a waste, because he is never around." As a result, permission
was requested to post the vacancy outside the government.
3. Guadarrama's length of service with Respondent and his duties as
Vice President make him particularly knowledgeable about Respondent's
promotion selection procedures. He testified without contradiction that
Respondent only infrequently expanded the area of consideration to
include nongovernmental employees. Moreover, he has personally been on
or about 11 certificates and on none of these did Respondent expand the
area of consideration.
4. Guadarrama was the only applicant required to submit to a written
test and it was only because he correctly questioned the validity of
this requirement that the test was not reviewed by Ford. Although
Guadarrama won the battle, he lost the war, as it is undisputed that
Ford then required Guadarrama to respond orally to the same set of
questions used in the invalid written test. Thus, in the guise of an
interview, Ford accomplished indirectly what he was prohibited from
doing directly.
5. The evidence does not establish that the other three candidates
were required to submit to an oral test. The burden was on Respondent
to submit such proof. None of the other candidates were called as
witnesses. Apart from Ford's obvious bias and lack of credibility, his
testimony only reflects in conclusionary terms that he gave the tests to
the other candidates, but he made no effort to indicate the
circumstances under which the oral tests were given, their duration, or
their results in specific terms. Accordingly, I do not rely on his
testimony.
6. Ford admitted that upon completion of the oral test, Guadarrama
was definitely still in competition for selection.
7. Guadarrama was the only applicant required to demonstrate his
proficiency on a piece of equipment. Ford required this of Guadarrama
in spite of the fact that Guadarrama had previously objected to Childs
about the legality of such requirement. Ford went out of his way to
find what he regarded as a loophole in the regulations permitting a
selecting official to give applicants "an opportunity" to demonstrate
their proficiency. As previously concluded, however, Ford's method of
presenting the matter to Guadarrama amounted to the imposition of a
requirement-- not the affording of an opportunity-- to demonstrate his
proficiency. At that, however, Ford still had to admit that Guadarrama
performed well and was still a candidate for promotion.
8. Ford told John Strange that unless anything cropped up in the
future interviewees he (Ford) would be "quite content to hire Hector."
Strange did not testify but is alleged to have replied that he felt
Hector would be fine, that he had worked well with him in the past, and
that he could foresee no problems. Coming from the very person whose
WG-10 position was being sought by Guadarrama, Strange's praiseworthy
comments are particularly noteworthy.
9. What, if anything, "cropped up" in the interviews with the other
three candidates? Apparently nothing, because it was after these
interviews that Ford went to Personnel and to MSgt. Moore to inquire
whether there were any "other considerations" which he could utilize to
resolve what he termed an "unusual dilemma" of having four competent
candidates to choose among, any one of whom could have performed the
job. In other words, at that particular point in the selection
process-- after all tests and interviews were completed, and all
applications reviewed-- Ford was telling Personnel and MSgt. Ford that
the four applicants were as alike as peas in a pod, that he had not yet
made a selection, and that he was looking for some other consideration
to rely upon. Since he had not yet made a decision, it would thus
appear that nothing had "cropped up" to defeat any claim Guadarrama
might feel he had by virtue of his status as an employee of Respondent
familiar with the equipment and the personnel with whom and for whom he
would be working.
10. Why, then, was Guadarrama not selected by Ford? Why was he
passed over in favor of someone from outside the agency? What were the
other considerations which finally were relied upon by Ford to break the
tie and tip the scales in favor of someone other than Guadarrama? The
answer, I believe, comes from the lips of Ford himself in the
conversation with Childs overheard right about the time that the
decision was being made. Ford said: "No, he would not be good; Hector
can't do it because he is always in Union business; he is never there .
. . . I heard him (Ford) say Hector would not be qualified because his
Union business got in the way" (Tr. 74, 75). See also Tr. 65. Upset by
what he heard, and after learning that Guadarrama really was not
selected (by now Vasquez had reported for duty), Cary began to ask
questions. He confronted Childs in the break room and specifically
asked why Hector had not been promoted. In the presence of Childs, an
agent of Respondent, Airman Tustin said: "Yeah, well, he is always
doing Union stuff and he is never around. Why are we going to pay
somebody who is not going to be here? We have work to do." Childs did
not disassociate himself from Tustin's remarks and responded in the same
vein saying: "it would be a shame; it would be a waste; because he is
never around" (Tr. 80). In this context, Childs' statement was a clear
reference to Guadarrama's union activities. Further, since Childs was
the one to whom Ford was speaking two weeks earlier in the conversation
overhead by Cary, Childs' remarks merely confirmed the basis for Ford's
decision. Significantly, Childs did not respond to Cary by saying that
Vasquez was better qualified or that Guadarrama was lesser qualified.
It is also significant that someone outside the supervisory level; i.e.
rank-and-file Airman Tustin, knew the basis for Ford's decision.
11. On the basis of the foregoing, and on the entire record, I
conclude that Guadarrama was a victim of disparate treatment. He was
not selected because of his protected union activity and this was not
only a reason for his nonselection, but it was the reason for his
nonselection. Ford's discredited account of the reasons why he
ultimately selected were pretextual; thus, this is not a dual motive
case. In summary, I find and conclude that Respondent violated section
7116(a)(2) by its nonselection of Guadarrama because of his having
engaged in protected union activities. Since such discriminatory conduct
tends to interfere, restrain and coerce employees-- like guadarrama and
Cary-- in the exercise of their statutory rights, such conduct also
constitutes a derivative violation of section 7116(a)(1).
Remedy
Section 7106 of the Statute enumerates certain inherent rights of
management which include, inter alia, the right to layoff, suspend, and
take other disciplinary actions against employees, as well as the right
to select employees for promotion. However, such rights must be
exercised "in accordance with applicable laws." Whenever an agency
discriminates against an employee because of his or her protected union
activity, said agency thereby fails to exercise its management rights in
accordance with applicable law; i.e. section 7116 of the Federal
Service Labor-Management Relations Statute. Therefore, it follows that
the Authority, in fashioning an appropriate remedial order designed to
remedy the statutory violation, often finds it necessary to order an
agency (1) to cease and desist its unlawful conduct, and (2) to restore
the status quo which would have existed, but for the unlawful conduct.
This is what must be done here.
Where an agency's disciplinary action was found to be motivated
solely by anti-union considerations and taken as a reprisal for union
activity, the Authority has directed the agency to remove and expunge
from the files any record of counseling concerning the incident in
question. /23/ In the case of an unlawful exercise of the right to
discharge an employee, the Authority has ordered the employee's
reinstatement with backpay. /24/ Where an employee has been suspended
for unlawful reasons, the suspension action has been revoked and
expunged from the employee's personnel file, and backpay ordered. /25/
Where a promotion selection process has not complied with the collective
bargaining contract and applicable regulations, the Authority has
ordered the selection process to be rerun in order to properly identify
any employees affected by an improper failure to promote and, once
identified, the Authority's order directs their promotion and
reimbursement for backpay. /26/ In arbitration decisions the Authority
has stated that management's retained right to select or not select may
be abridged if a direct connection is found between improper agency
action and the agency's failure to select a specific employee for
promotion. /27/
I have previously found in this case (see Findings, section F, supra)
that a direct causal relationship exists between Respondent's unlawful
consideration of Guadarrama's protected union activity and Respondent's
failure to select him for promotion. I further have found that but for
Respondent's statutory violations, Respondent itself would definitely
have selected Hector Guadarrama for promotion to the position of WG-10
Heavy Equipment Operator. Accordingly, I recommend that Respondent be
ordered to cease and desist its unfair labor practices, vacate (if
necessary) the WG-10 Heavy Equipment Operator position, retroactively
promote Hector Guadarrama to that position, reimburse him for the loss
of monies occasioned by the improper and unlawful failure to promote him
on June 2, 1983, and post an appropriate notice to employees.
Accordingly, I recommend the Authority adopt the following:
ORDER
Pursuant to section 2423.29 of the Rules and Regulations of the
Federal Labor Relations Authority, and section 7118 of the Statute, the
Authority hereby orders that the United States Department of Defense,
Department of the Air Force, Headquarters 47th Flying Training Wing
(ATC), Laughlin Air Force Base, Texas, shall:
1. Cease and desist from:
(a) Considering the protected union activities of employees in
making determinations whether employees shall be promoted.
(b) Refusing to promote Hector Guadarrama or any other employee
because of their union activity.
(c) Interfering with, restraining, and coercing Hector
Guadarrama or any other employee in the exercise of their rights
assured by the Federal Service Labor-Management Relations Statute.
(d) In any like or related manner, interfering with,
restraining, or coercing its employees in the exercise of rights
assured by the Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Vacate, if necessary, the position of Engineering Equipment
Operator, WG-5716-10, and retroactively promote Hector Guadarrama
to such position; reimburse him for the loss of pay he suffered
by reason of the failure to promote him on June 2, 1983, due to
his protected union activities; and restore to him any right or
privilege he may have lost by such action.
(b) Post, at United States Department of Defense, Department of
the Air Force, Headquarters 47th Flying Training Wing (ATC),
Laughlin Air Force Base, Texas, copies of the attached Notice
marked "Appendix" 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 by
him for 60 consecutive days thereafter, in conspicuous places,
including all bulletin boards and other places where notices to
employees are customarily posted. The Base Commander shall take
reasonable steps to insure 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 of Region VI, Federal
Labor Relations Authority, P.O. Box 2640, Dallas, Texas, in
writing, within 30 days from the date of this Order, as to what
steps have been taken to comply herewith.
FRANCIS E. DOWD
Administrative Law Judge
Dated: November 29, 1984
Washington, DC
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
STATUTE WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT refuse to promote Hector Guadarrama or any other employee
because of their protected union activities.
WE WILL NOT consider the protected union activities of employees in
making determinations whether employees shall be promoted.
WE WILL NOT in any like or related manner, interfere with, restrain,
or coerce Hector Guadarrama or any other employee in the exercise of
rights assured by the Federal Service Labor-Management Relations
Statute.
WE WILL retroactively promote Hector Guadarrama to such position of
Engineering Equipment Operator, GS-571-- 10, reimburse him for the loss
of pay he suffered by reason of the failure to promote him on June 2,
1983, due to his protected union activities; and restore any right or
privilege he may have lost by such action.
(Agency or Activity)
Dated: By: (Signature)
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 or compliance
with any of its provisions, they may communicate directly with the
Regional Director of the Federal Labor Relations Authority, Region VI,
whose address is: P.O. Box 2640, Dallas, Texas 75221 and whose
telephone number is: (214) 767-4996.
--------------- FOOTNOTES$ ---------------
/1/ In adopting the Judge's conclusion that the Respondent violated
section 7116(a)(1) of the Statute based on supervisory statements about
the selection, the Authority relies on statements the selecting official
made to a supervisor which were overheard by an employee, as well as a
supervisor's remarks to the employee, in finding a violation of section
7116(a)(1) of the Statute. Although the Judge noted that the employee
who was involved in these situations was in the bargaining unit, the
Respondent asserted in its exceptions that the employee was temporary
and thus was excluded from the unit. There is no dispute that the
employee in question was an employee within the meaning of section
7103(a)(2) of the Statute, and the employee's bargaining unit status is
irrelevant to finding a violation of section 7116(a)(1) of the Statute.
/2/ Compare United States Department of Agriculture, Plant Protection
and Quarantine, Animal and Plant Health Inspection Service, 17 FLRA No.
40 (1985) (wherein the Authority did not order backpay due to the
failure to establish, in accordance with the requirements of the Back
Pay Act, 5 U.S.C. 5596, that but for the Respondent's unlawful conduct
the affected employee(s) would not have suffered a loss or reduction in
pay, allowances, or differentials).
/3/ In directing that the Respondent take certain affirmative action
with respect to employee Hector Guadarrama, the Authority finds it
unnecessary to address what action, if any, might be necessary with
respect to the originally selected employee.
/4/ To the extent that paragraph 11 of the complaint alleges a
violation of section 7116(a)(1) and (2) based upon the conduct set forth
in paragraph 7(a) of the complaint, I recommend dismissal as such
conduct occurred more than six months prior to the filing of the charge.
See 5 U.S.C. 7118(a)(4). I also recommend dismissal as to Lt. Col.
Harvey Manekofsky as the evidence does not establish any involvement by
him during the six months prior to the filing of the charge herein.
/5/ The certificate for the WG-11 position was not placed in
evidence. For the reasons more fully set forth in footnote 6, I believe
the term "fully qualified" is more accurate than "best qualified" in
this context.
/6/ The certificate for the WG-10 position (Jt. Exh. No. 1) uses the
term "fully qualified" and I believe it is not unreasonable to assume
the same form was used for the WG-11 position. Accordingly, I conclude
that use of the term "best qualified" is not correct. (See Tr. 14,
lines 16-18 and compare with Tr. 15, lines 20-22.)
/7/ Since neither Childs nor Manekofsky testified, the record is
silent as to Respondent's reasons for seeking candidates from outside
the government.
/8/ Guadarrama estimated that expanding the area of consideration to
nongovernmental employees occurred "not too often", perhaps 3 or 4 times
per year. In his own case, he has been on about 11 other certificates,
none of which were ever expanded in this way. He is also aware of the
normal practice because of his Union position and his familiarity with
the practice of the EEO Committee.
/9/ On direct examination, Ford testified that when he first arrived
at this duty station he was told quite emphatically that he could use a
"questionnaire," but he didn't like the one provided him, which was
taken from a textbook test, so he compiled his own. "So it wouldn't
have told me very much if I had given that test. I rewrote the
questionnaire asking questions of a much broader, general nature . . .
." I credit Guadarrama's testimony that Ford characterized the list of
questions as a "test." Ford himself referred to it as a test. (See Tr.
103, lines 24-25 and Tr. 104, lines 9-10.)
/10/ Respondent's suggestion that Ford did not "require" Guadarrama
to operate the backhoe is emphatically rejected. When a job applicant
is twice informed that a demonstration of proficiency is a prerequisite,
the "suggestion" that Guadarrama might want to operate the backhoe is
more than a mere suggestion. Had Guadarrama opted not to operate the
backhoe, Ford easily could have inferred that Guadarrama feared he would
fail the test.
/11/ Ford explained why he insisted upon a demonstration of
proficiency by saying that "as a supervisor in this business, I can
teach somebody to operate equipment. What I learned by seeing them on a
piece of equipment of any kind is a combination of hand, foot, and eye
coordination that one must have to be able to learn. Some people have
it; some people don't." For purposes of the demonstration, Ford stated
that the loader, grader and backhoe were acceptable. Ford also
testified that each piece of equipment had its own peculiarities and
characteristics; therefore, he expected to train everyone on each piece
of equipment even though they already had experience elsewhere on the
same equipment.
/12/ Based upon my observation of Ford when he responded to this
question, I must admit to having some doubts about his sincerity. His
response seemed contrived. In fact, his entire testimony seemed
tailored to fit into a carefully planned after-the-fact defense, rather
than an honest straightforward account of really what happened. I am
also compelled to point out that notwithstanding the importance placed
by Ford in observing one's hand, foot and eye coordination (supra, fn.
11), Ford did not require (or give an opportunity to) the other
candidates to demonstrate their proficiency on a piece of equipment.
Whether this undisputed fact had any influence on Ford's response to
Counsel's question is a matter about which one can only speculate.
/13/ Respondent argues that Cary's testimony is riddled with prior
inconsistent statements, but did not introduce into evidence his
pre-trial affidavit. To the extent there even appear to be some
inconsistencies on minor matters, they were explained by Cary to my
satisfaction. Thus, in both his affidavit (referred to by Counsel in
cross-examination) and in his testimony he stated that he couldn't hear
Childs' response to Ford (Tr. 70, lines 10-14, Tr. 76, lines 22-25).
Nor do I agree that Cary's ability to observe was hampered in any way.
On the contrary, he was clear as to what he saw, what he heard, and the
fact that he really only focussed his attention on what related to
Guadarrama.
/14/ Cary's affidavit was the result of a telephone interview,
presumably because Del Rio is so far from FLRA's Dallas office. The
fact that Cary's affidavit was not taken under oath has not resulted in
any prejudice to Respondent who had an opportunity to examine Cary about
his affidavit and to cross-examine him concerning his testimony on the
stand. My decision herein is not based upon any affidavit; it is based
upon Cary's testimony. The questions asked of MSgt. Ford and the fact
that Steward and Tustin were available to testify indicates that Counsel
for Respondent was prepared to litigate the issues centering on Cary's
testimony.
/15/ Cary credibly testified (Tr. 83, lines 9-12) that he "really
didn't know the month-- seriously do not know the month. I know that it
was before Roy (Vasquez) came to work (June 7) and it was right about
the time when they were finding out that Hector did not get the job."
Earlier Cary stated (Tr. 71, lines 12-13) "I thought it was in the
beginning of June." And further, Cary fixed the time as a good week or
two weeks before Vasquez reported to work. I conclude, from Cary's
testimony, that the conversation he overheard occurred on approximately
June 1 but it is not clear whether it was before or after Ford actually
made his decision. In other words, it's not clear whether he was
explaining a decision already made, or one which was about to be made.
Although it's a close question, I'm inclined to believe it's more likely
that Ford was explaining why he was not going to select Guadarrama.
/16/ Respondent argues that it is incredible that Cary only recalls a
portion of the conversation. The answer, I believe, is that he only
remembered what he regarded as important; namely, the part dealing with
Hector Guadarrama. I have considered, and I reject, Respondent's
contention that Cary's testimony was inherently improbable, evasive and
nonresponsive.
/17/ Indeed, Ford was specifically asked whether Childs told him
anything about the promotion action. Ford replied: "Yes. He told me
that-- when we were talking about it-- he said something about I
couldn't put people on the equipment because there had been a complaint
or a grievance or something on Mr. Guadarrama's part." Ford didn't agree
with this conclusion and, after talking to Flores in personnel, found a
line in the manual stating that it was permissible to offer people an
opportunity to demonstrate their proficiency on the equipment.
/18/ Apart from the possible bias of the witness, I place no
significance on this testimony. Lack of experience on one piece of
equipment is not critical, particularly where it wasn't listed on the
SF-171, and may not have been known to Ford. Of course, if Ford had
required Vasquez to submit to a proficiency demonstration on the
backhoe, it is a matter for speculation as to whether his performance
would have been satisfactory or not. What is significant is that the
backhoe was available (Tr. 126) but Ford did not insist on a
demonstration.
/19/ See also: NLRB v. Transportation Management Corp. --- U.S. ---,
103 S.Ct. 2469, 76 L.Ed. 2d 667, 113 LRRM 2857 (1983); Wright Line, 251
NLRB 1083, 105 LRRM 1169 (1980); American Federation of Government
Employees, Local 1920, AFL-CIO, 16 FLRA No. 70 (Nov. 15, 1984).
/20/ See e.g. Department of the Treasury, United States Customs
Service, Region IV, Miami, Florida, 8 FLRA No. 109, 8 FLRA 561 (1982);
United States Forces Korea/Eighth United States Army, 11 FLRA No. 79, 11
FLRA 434 (1983); United States Immigration and Naturalization Service,
San Diego, California, 13 FLRA No. 102, 13 FLRA 591 (1984); and United
States Air Force, Air Force Logistics Command, Wright-Patterson Air
Force Base, Ohio, 14 FLRA No. 58, 14 FLRA 311 (1984). Cf. Veterans
Administration Medical Center, Buffalo, New York, 13 FLRA No. 46, 13
FLRA 283.
/21/ In response to Cary's inquiry, SSgt. Childs linked Guadarrama's
nonselection to his activities as a Union representative; i.e. that
Guadarrama's selection for promotion "would be a shame, it would be a
waste; because he is never around." Such a statement to bargaining-unit
employee Cary-- although intended only to explain what happened to
Guadarrama-- necessarily has the effect of discouraging Cary and other
employees from exercising his (their) rights under the Statute. Thus,
such statement is interference, restraint and coercion within the
meaning of section 7116(a)(1). General Services Administration,
National Capital Region, 4 FLRA No. 69, 4 FLRA 502. Office of Program
Operations, Field Operations, Social Security Administration, San
Francisco Region, 9 FLRA No. 11, 9 FLRA 73 (1981). Since the remedy
would be the same, I find it unnecessary to decide whether Ford's
statements to Childs (overheard by Cary) also constituted a violation of
section 7116(a)(1).
/22/ In referring to Guadarrama, Ford testified: "It did not concern
me how well he could do with a backhoe; because I didn't expect a new
person to be able-- in the same sense it is difficult for me to get into
somebody else's car." In referring to the other applicants, he said the
same would be true. "It didn't make any difference to me what piece of
equipment they chose, as long as it had levers, pedals, and wheels.
That is really all that I was looking for-- the ability to use judgment
and coordination . . . ." (Tr. 124-125).
/23/ Department of the Treasury, United States Customs Service,
Region IV, Miami, Florida, 8 FLRA No. 109, 8 FLRA 561 (1982). See also:
Veterans Administration Center, Leavenworth, Kansas, 1 FLRA No. 111, 1
FLRA 978 (1979) (written counseling and transfer); Veterans
Administration Medical Center, Bath, New York, 12 FLRA No. 107, 12 FLRA
560 (1983) (changing a tour of duty, et. al); United States Forces
Korea/Eighth United States Army, 11 FLRA No. 79, 11 FLRA 434 (1983)
(refused to endorse employee's application for an extension of his tour
of duty in Korea); Department of Transportation, Federal Aviation
Administration, Boston Air Route Traffic Control Center, Nashua, New
Hampshire, 11 FLRA No. 67, 11 FLRA 318 (1983) (restricting employee's
right to make voluntary changes in shift assignments).
/24/ United States Marine Corps, Marine Corps Logistics Base,
Barstow, California, 5 FLRA No. 97, 5 FLRA 725 (1981).
/25/ United States Immigration and Naturalization Service, San Diego,
California, 13 FLRA No. 102, 13 FLRA 591 (1983).
/26/ Department of Defense, Department of the Navy, Naval Ordnance
Station, Louisville, Kentucky, 4 FLRA No. 100, 4 FLRA 760 (1980).
/27/ Veterans Administration Hospital, 4 FLRA No. 57, 4 FLRA 419
(1980); Department of Health and Human Services, Social Security
Administration, Area III, 8 FLRA No. 50, 8 FLRA 240 (1982); American
Federation of Government Employees, AFL-CIO, Local 2855, 13 FLRA No. 43,
13 FLRA 251 (1983); Cf. Action, 11 FLRA No. 89, 11 FLRA 514 (1983);
American Federation of Government Employees, Local 12, 15 FLRA No. 113,
15 FLRA 543 (1984).