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22:0529(56)CA
The decision of the Authority follows:
22 FLRA No. 56
DEPARTMENT OF THE AIR FORCE
HEADQUARTERS AIR FORCE LOGISTICS
COMMAND, WRIGHT-PATTERSON AIR
FORCE BASE, OHIO
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, COUNCIL 214
Charging Party
Case No. 5-CA-30322
DECISION AND ORDER
I. Statement of the Case
This unfair labor practice case is before the Authority because of
limited exceptions filed by the Respondent to the attached Decision of
the Administrative Law Judge. No exceptions were filed to the Decision
and recommended Order of the Judge and they are not in dispute. The
sole issue raised it whether the Judge's denial of the Respondent's
motion to revoke two subpoenas, requested by the General Counsel,
requiring the appearance of an employee at certain phases of the hearing
in this case should be affirmed. The Respondent also filed a motion to
consolidate this case with another which is currently pending before the
Authority.
II. Background and Judge's Conclusion
Due to the geographical location of a large number of witnesses, the
hearing in this case was held at three sites: Dayton, Ohio; Oklahoma
City, Oklahoma; and Macon, Georgia, respectively, An employee, Paul
Palacio, was subpoenaed, at the request of the General Counsel, to
appear at each site. At all relevant times, Palacio was President of
the Charging Party and assigned to the Wright-Patterson Air Force Base,
Dayton, Ohio. At the opening of the Dayton phase of the hearing, the
Respondent moved that the Judge revoke Palacio's subpoenas for the
Oklahoma City and Macon phases of the hearing on the ground that the
employee's testimony was not relevant to the proceeding at these
locations. The Judge questioned the General Counsel and Palacio
concerning the necessity for the employee's testimony at these sites and
considered the Respondent's response. After hearing the arguments, the
Judge denied the Respondent's motion to revoke, stating:
I recognize . . . that in deciding whether a witness is
necessary, I am not to superimpose my judgement for that of
counsel trying a case. That counsel may have another witness that
may or may not serve the same purpose. I don't think if the
witness requested is reasonably related that I can say, no, I'm
going to make you use someone else. I don't think my authority
goes that far. I am going to revoke the subpoena, but I will
permit the subpoena to stand, because I think that Mr. Palacio is
-- may reasonably be expected to have relevant information that
can be admissible with respect to what happened at these other
bases (Dayton Tr. 20-21).
With respect to the allegations of the complaint, the Judge concluded
that the Respondent, by the conduct of certain supervisors, violated
section 7116(a)(1) and (5) of the Federal Service Labor-Management
Relations Statute (the Statute) by unilaterally implementing a quota
system for rating employees under the Civilian Potential Appraisal
System (CPAS) during the 1983 rating cycle, without giving the Charging
Party notice of, and an opportunity to bargain over, procedures and
appropriate arrangements for employees adversely affected by the change.
III. Positions of the Parties
In its exceptions, the Respondent only takes issue with the Judge's
denial of its motion to revoke two subpoenas, requested by the General
Counsel, requiring Paul Palacio, an employee, to appear at the Oklahoma
City, Oklahoma and Macon, Georgia sites of the hearing. More
particularly, the Respondent argues that the Judge's determination that
Palacio was a necessary witness constituted an abuse of his discretion.
In support of such contention the Respondent essentially asserts that:
(1) the General Counsel's basis for subpoenaing Palacio was vague; (2)
the employee possessed only hearsay knowledge of the allegations
litigated at the two sites; (3) local union officers were available and
suitable as witnesses for the General Counsel; and (4) Palacio
testified concerning his first-hand knowledge of the case during the
Dayton phase of the hearing. Furthermore, the Respondent argues that
the Judge's determination that Palacio was a necessary witness should
have been subjected to a "reasonableness" test. The Respondent also
moved to consolidate this case with Case No. 5-CA-40259.
In opposing the Respondent's exceptions, the General Counsel contends
that the Respondent's brief misrepresented certain facts, and that the
Judge's ruling must be affirmed because it is clearly supported by the
Authority's Rules and Regulations as well as Authority precedent. The
General Counsel also opposed the Respondent's motion to consolidate.
IV. Analysis
A. Motion to Consolidate
In its motion to consolidate this case with case No. 5-CA-40259,
which is currently pending before the Authority, the Respondent
essentially contends that: consolidation would save time and money;
the cases involve the same parties; and the exceptions in each case are
based upon the set of circumstances. The General Counsel, in opposing
the consolidation of cases, argues there is no evidence or reasonable
expectation that the consolidation of these cases, at this stage of the
proceeding, would result in a "cheaper and quicker" disposition of the
cases, especially when separate hearings have already been held,
different Judges' decisions rendered, and exceptions filed with the
Authority. Further, the General Counsel asserts that the unfair labor
practice charges in the two cases are based on different circumstances
which involve different and unrelated violations of the Statute.
The Authority denies the Respondent's motion to consolidate. In the
Authority's view, there is no basis for concluding that, at this stage
of the proceeding, the consolidation of Case No. 5-CA-30322 and Case No.
5-CA-40259, which arose from unfair labor practice charges based upon
different circumstances, would result in any savings in time and money
to the parties or the Authority, or that such consolidation would result
in q quicker disposition of these cases.
B. Exceptions /1/
With respect to the Judge's ruling at issue, in Norfolk Naval
Shipyard, Portsmouth, Virginia, 5 FLRA 788 (1981), the Authority held
that "once an unfair labor practice hearing has convened and before the
close of the hearing, . . . the (Judge) has the power under the
Authority's Rules and Regulations to determine, subject to review by the
Authority, whether the participation of any employee in any phase of any
proceeding before the Authority is necessary. . . ." /2/ Upon reviewing
the record, the Authority notes, among other things, that a large number
of individuals were tentatively scheduled to be called as witnesses by
the Respondent; that the Judge ascertained from the General Counsel
that given the large number of witnesses and the uncertainty of their
testimony, Palacio was needed as someone who "might be able to rebut
their testimony," and that the Judge further ascertained from Palacio
that he had been the individual who had dealt with management generally
on the CPAS problem and was the individual who received complaints from
the Changing Party's various regional and field representatives. /3/ In
view of these facts, the Authority finds that the evidence presented at
the hearing, at the time of the Judge's ruling, demonstrates that the
employee, as deemed by the Judge, was a necessary witness, and therefore
the Judge did not abuse his discretion as alleged by the Respondent.
Accordingly, the Judge's ruling in this regard is affirmed.
In rejecting the Respondent's contention that a "reasonableness" test
be applied to the Judge's determination, the Authority notes that it has
previously considered but rejected the application of a "reasonableness"
standard to a determination, by an appropriate Authority agent, than an
employee's participation in a particular Authority proceeding is
necessary. See Department of the Treasury, Internal Revenue Service,
Department of the Treasury, Internal Revenue Service, Jacksonville
District, 15 FLRA 506 1984); Department of the Treasury, Bureau of
Alcohol, Tobacco and Firearms, 13 FLRA 558 (1983); and Department of
Health and Human Services, Social Security Administration, Great Lakes
Program Service Center, 10 FLRA 510 (1982).
V. Conclusion
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, the Authority has reviewed the rulings
of the Judge made at the hearing, finds that no prejudical error was
committed, and thus affirms those rulings. Specifically, the Authority
affirms the Judge's ruling denying the Respondent's motion to revoke two
subpoenas requiring the appearance of employee Paul Palacio at the
Oklahoma City, Oklahoma, and Macon, Georgia phases of the hearing as the
record supports the Judge's conclusion that the employee was a necessary
witness. Further, upon consideration of the Judge's Decision and the
entire record, and noting particularly that no exceptions were filed to
the Judge's Decision or his recommended remedy, the Authority adopts the
Judge's findings, conclusions and recommended Order.
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Federal
Service Labor-Management Relations Statute, the Authority orders that
the Department of the Air Force, Headquarters, Air Force Logistics
Command, Wright-Patterson Air Force Base, Ohio shall:
1. Cease and desist from:
(a) Changing the working conditions of employees exclusively
represented by Council 214, American Federation of Government
Employees, AFL-CIO, by using a numeric quota system of rating
bargaining unit employees under the Civilian Potential Appraisal
System, without first notifying the exclusive collective
bargaining representative and bargaining, upon request, concerning
procedures to be observed in implementing the system and
appropriate arrangements for employees adversely affected.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of their
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) Bargain in good faith, upon request, with Council 214,
American Federation of Government Employees, AFL-CIO, concerning
procedures to be observed im implementing any system for the use
of quotas in appraising employees in competitive action appraisal
programs, and concerning appropriate arrangements for employees
adversely affected by such a system.
(b) Require that the following supervisors reaccomplish any
1983 CPAS ratings for all employees who were adversely affected by
the use of a quota system, and certify that the CPAS no longer
reflects any such adverse effect:
At Wright-Patterson AFB, Ohio, Col. James Harvey, Jr., Lt. Col.
Reginald P. Gibson, Captain Helen Brinerd, Joanne Wells, and
Captain Joseph Zelasco; at Hill AFB, Utah, Allen W. Meyer,
Secundino Martinez, Neil Peterson, Russell Lawrence, Robert Parks,
M.C. Hurd and James P. Kretzmann; at Warner Robins AFB, Georgia,
Gordon H. Brantley; at McClellan AFB, California, Bernard T.
Sakamoto, Jackson W. Lytal, Richard Steele, Lt. Col. John
Peterson, John W. Huston, Beverly Woodward, Charles Richins, Gary
C. Crowder, LaVelle Hopper, Horace Holmes and Robert Calvert; and
at Tinker AFB, Oklahoma, Clayton Branton, Billie Coughran, James
Dyer, and Donald Basinger.
(c) Post at its facilities at Wright-Patterson AFB, Ohio, Hill
AFB, Utah, Warner Robins AFB, Georgia, McClellan AFB, California,
and Tinker AFB, Oklahoma, 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 Commander, Air
Force Logistics Command, or a designee, 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 insure that such Notices are not altered,
defaced, or covered by any other material.
(d) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region V, Federal Labor
Relations Authority, in writing, within 30 days from the date of
this order, as to what steps have been taken to comply with the
order.
Issued, Washington, D.C., July 11, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(1) In connection with its exceptions, the Respondent requests the
Authority to take official notice of certain evidence contained in Case
No. 5-CA-40259 mentioned above. The Authority, noting that the rulings
and determination of the Judge were based upon the evidence presented in
the proceeding before him, denies such request.
(2) Section 2429.13 of the Authority's Rules and Regulations
provides, in pertinent part, as follows:
Section 2429.13 Official time
If the participation of any employee in any phase of any
proceeding before the Authority, including the investigation of
unfair labor practice charges and representation petitions and the
participation in hearings and representation elections, is deemed
necessary by the Authority, the General Counsel, any
Administrative Law Judge, Regional Director, Hearing Officer, or
other agent of the Authority designated by the Authority, such
employee shall be granted official time for such participation. .
. .
See also section 2429.7 of the Authority's Rules and Regulations
which provides, in pertinent part, as follows:
Section 2429.7 Subpenas.
(d) (T)he . . . Administrative Law Judge . . . shall grant the
request upon the determination that the testimony or documents
appear to be necessary to the matters under investigation(.)
(e) (T)he . . . Administrative Law Judge . . . shall revoke the
subpena if the evidence the production of which is required does
not related to any matter under investigation or in question in
the proceedings(.)
(3) The record reveals that the General Counsel later informed the
Judge that Palacio would not appear at the Macon phase of the hearing.
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
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT change the working conditions of employees exclusively
represented by Council 214, American Federation of Government Employees,
AFL-CIO, by using a numeric quota system for rating bargaining unit
employees under the Civilian Potential Appraisal System without first
notifying the exclusive collective bargaining representative and
bargaining, upon request, concerning procedures to be observed in
implementing the system and appropriate arrangements for employees
adversely affected.
WE WILL NOT, in any like or related manner, interfere with, restrain,
or coerce our employees in the exercise or their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL bargain in good faith, upon request, with Council 214,
American Federation of Government Employees, AFL-CIO, concerning
procedures to be observed in implementing any system for the use of
quotas in appraising employees in competitive action appraisal programs,
and concerning appropriate arrangements for employees adversely affected
by it.
WE WILL require that the following supervisors reaccomplish any 1983
CPAS ratings for all employees who were adversely affected by the use of
a quota system, and certify that the CPAS no longer reflects any such
adverse effects:
At Wright-Patterson AFB, Ohio, Col. James Havey, Jr., Lt Col.
Reginald P. Gibson, Captain Helen Brainerd, Joanne Wells, and
Captain Joseph Zelasco; at Hill AFB, Utah, Allen W. Meyer,
Secundino Martinez, Neil Peterson, Russell Lawrence, Robert Parks,
M.C. Hurd and James P. Kretzmann; at Warner Robins AFB, Georgia,
Gordon H. Brantley; at McClellan AFB, California, Bernard T.
Sakamoto, Jackson W. Lytal, Richard Steele, Lt. Col. John
Peterson, John W. Huston, Beverly Woodward, Charles Richins, Gary
C. Crowder, LaVelle Hopper, Horace Holmes and Robert Calvert; and
at Tinker AFB, Oklahoma, Clayton Branton, Billie Coughran, James
Dyer, and Donald Basinger.
(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 V,
whose address is: 175 W. Jackson Blvd., Suite 1359-A, Chicago, Illinois
60604, and whose telephone number is: (312) 353-6306 or FTS 886-3468.
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ALJ decision not available. [ ALJNOTAVAILABLE$ ]
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