[ v54 p837 ]
54:0837(83)CA
The decision of the Authority follows:
54 FLRA No. 83
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.
_______
U. S. SMALL BUSINESS ADMINISTRATION
WASHINGTON, D.C.
(Respondent)
and
ROBERT WILDBERGER
(Charging Party/Individual)
WA-CA-21060
51 FLRA 413 (1995)
_______
DECISION AND ORDER ON REMAND
August 31, 1998
Before the Authority: Phyllis N. Segal, Chair; Donald S.
Wasserman and Dale Cabaniss, Members
I. Statement of the Case
This unfair labor practice (ULP) case is before the Authority
pursuant to a remand from the United States Court of Appeals for the
District of Columbia Circuit. Wildberger v. FLRA, 132 F.3d 784 (D.C.
Cir. 1998) (Wildberger v. FLRA). In the case on review, United
States Small Business Administration, Washington, D.C., 51 FLRA 413
(1995) (SBA), the Authority had dismissed three related ULP
complaints for lack of jurisdiction. In Wildberger v. FLRA, the D.C.
Circuit upheld the Authority with respect to two of the complaints,
but found the Authority had jurisdiction over the third. The court
remanded that complaint to the Authority for a decision on the
merits.
In SBA, the Administrative Law Judge (Judge) had reached the
merits of the complaint now before us, and recommended that it be
dismissed. Because the Authority dismissed the complaint on
jurisdictional grounds, it never reached the merits of the case. We
now consider the Charging Party's exceptions and the opposition
thereto as they relate to the matter on remand.
The complaint before us alleges that the Respondent violated
section 7116(a)(1) and (2) of the Federal Service Labor-Management
Relations Statute (the Statute) by treating a bargaining unit member
in a disparate and discriminatory manner because he had engaged in
protected activities under the Statute. For the reasons that follow,
we deny the Charging Party's exceptions and dismiss the complaint.
II. Background and Judge's Decision
A. The Facts
Robert Wildberger was employed by the Respondent from 1980
until he was removed for misconduct in September 1992. Wildberger
was active in union matters, first as president of the American
Federation of Government Employees (AFGE) Local 2532 and AFGE Council
228, the bargaining agents for Respondent's headquarters employees,
and later when he formed an independent union, Solidarity, USA
(Solidarity). In the year preceding his termination Wildberger spent
considerable time trying to recruit SBA employees to join and support
Solidarity.
The Respondent proposed Wildberger's removal by notice dated
August 3, 1992, and on September 16, 1992, terminated Wildberger for
the reasons specified in the proposal notice. Wildberger appealed
his termination to the Merit Systems Protection Board (MSPB).
During the same general time period, Wildberger was involved in
a number of disputes with the Respondent. As a consequence,
Wildberger filed three ULP charges, all of which resulted in
complaints filed by the General Counsel. In the first of these
complaints, WA-CA-20821 ("the threat complaint"), Wildberger alleged
that his supervisor threatened to deny his training requests and to
fire him if he did not stop his union-related activities. In Case
No. WA-CA-21010 ("the removal complaint"), Wildberger alleged that
the notice proposing to remove him was in retaliation for protected
organizing activity. Finally, in Case No. WA-CA-21060 ("the
disparate treatment complaint"), Wildberger alleged that SBA had
discriminated against him for engaging in protected activity by
subjecting him to job-related restrictions to which no other
employees were subject.
B. Procedural history
1. The Authority's Decision in SBA
The three complaints were consolidated and heard by the Judge
over a three-day period. The Judge found that the removal complaint
was barred by section 7116(d) of the Statute. The Judge
recommended that the other complaints be dismissed on their merits.
On exceptions, the Authority held that all three complaints
were barred by section 7116(d) because "the same factual predicate
and legal issues underlie each of the complaints and Wildberger's
[MSPB appeal]." SBA, 51 FLRA at 414. Accordingly, the Authority
did not reach the merits of any of the complaints.
2. The D.C. Circuit's Decision
On a petition for review filed by Wildberger, the D.C. Circuit
upheld the Authority's jurisdictional determinations with respect to
the removal complaint and the threat complaint. Wildberger v. FLRA,
132 F.3d at 793-94. However, the court found that section 7116(d)
did not bar the disparate treatment complaint. Id. at 795.
Accordingly, the court remanded the complaint to the Authority for a
decision on the merits.
C. The Judge's Decision with Respect to the Disparate
Treatment Complaint
The complaint in Case No. WA-CA-21060 alleges that the
Respondent violated the Statute by: (1) from April 13 through August
26, 1992, inundating Wildberger with over 86 memoranda which required
a response; (2) prohibiting him from using Respondent's telephones,
equipment, resources, and electronic mail for personal reasons not
related to Respondent's business; (3) requiring him to report to his
supervisor whenever he was going to be away from his desk for more
than 5 to 10 minutes; and (4) after August 3, 1992, barring him from
working at his regularly assigned duty station and, during that same
period, requiring him to be escorted by management officials while in
the headquarters building. With respect to the last three
allegations, the complaint specifically states that the same
restrictions were not applied to other bargaining unit employees.
As set forth below, the Judge addressed each allegation in
the complaint and found that the evidence did not support a finding
of a violation. Accordingly, he recommended that the complaint be
dismissed in its entirety.
1. The Inundation of Memoranda
The Judge first found that the Respondent did not violate the
Statute by inundating Wildberger with memoranda which required
responses. To support the allegation that the Respondent issued
Wildberger over 86 such memoranda, the General Counsel entered 89
documents into the record. The Judge made a detailed analysis of the
evidence submitted to support the allegation that Wildberger was
inundated with memoranda and concluded that the documents submitted
by the General Counsel failed to reveal any improper motive on the
part of the Respondent. In addition to finding that some of the
documents were not even addressed to Wildberger, the Judge found that
many of them constituted Respondent's responses to correspondence
initiated by Wildberger. According to the Judge, other documents
were memoranda relating to work assignments, training, or leave put
in writing at Wildberger's request, or were pleadings in MSPB cases
served on Wildberger in accordance with MSPB regulations. The Judge
concluded that the Respondent's conduct could not reasonably be
perceived as coercive and therefore the Respondent did not violate
the Statute as alleged.
2. The Restrictions on the Use of Government Resources
for Non-government Purposes
The Judge concluded that the Respondent did not treat
Wildberger in a disparate manner by prohibiting him from using
Respondent's telephones, equipment, resources, and electronic mail
for non-official reasons.
The Judge found that while Respondent occasionally authorized
employees to use the telephone, copier, or other equipment for
personal business, no employee had made personal, non-official use of
government time and equipment to the extent that Wildberger used such
time and equipment. The Judge also noted that Respondent had
cautioned Wildberger about using government equipment for personal
business approximately 10 to 15 times before April 1992, when the
Charging Party notified the Respondent that he had formed Solidarity.
In addition, the Judge found that other employees had been
sanctioned or warned with respect to the misuse of government
resources. The Judge noted that in 1991, Respondent proposed the
removal of another bargaining unit employee in part for using
government equipment for personal business and conducting personal
business on duty time. This proposed action was resolved by the
employee resigning in lieu of removal. The Judge also found that
during staff meetings in early 1992, Wildberger's supervisor
cautioned all of the employees under his supervision that they needed
to be more diligent about being fully occupied with assigned work
during duty time.
Finally, the Judge found that in March or April 1992, the
supervisor individually cautioned two other bargaining unit employees
about the need to avoid doing personal business on duty time. These
employees complied with the instructions, so no further written
directions were necessary. On the other hand, the Judge found that,
despite numerous warnings, Wildberger never complied with supervisory
instructions on more than a temporary basis.
3. The "Whereabouts" Requirement
The Judge concluded that the Respondent did not treat
Wildberger in a disparate manner by requiring him to report to his
supervisor whenever he was going to be away from his desk for more
than 5 to 10 minutes. First, the Judge found that the same
requirement was imposed on another employee. That employee was not
involved in Solidarity, but like Wildberger, refused to comply with
management's orders not to spend extended periods of time away from
the duty station. The Judge also found that both employees had
received oral and written warnings prior to the imposition of the
"whereabouts" requirement. Thus, the Judge properly concluded that
there was no evidence of disparate treatment based on protected
activity and that no reasonable employee could have been coerced or
intimidated by the Respondent's conduct.
4. The Requirements to Work at Home and to be Escorted
by Respondent's Personnel
The Judge determined that the evidence did not establish that
Respondent treated Wildberger in a disparate manner by, on August 3,
1992, barring him from his regularly assigned duty station, or by
requiring that, after that date, he be escorted by management
officials when he traveled throughout the headquarters building. The
Judge first found that at least one other employee had been barred
from Respondent's headquarters while a proposed removal action was
pending. Further, the Judge found that the escort requirement was
not a coercive act on the part of management, but rather was a
necessary consequence of the decision to bar him from the
headquarters building. In order to effectively bar Wildberger, the
Respondent had confiscated his security access card. Thus, the Judge
concluded that when Wildberger was required to be in the headquarters
building after August 3, an escort was required to enable Wildberger
to access the various areas he needed to visit.
Taking into consideration all of the circumstances surrounding
the case, the Judge concluded that the General Counsel had not shown
that the Respondent's conduct reasonably tended to interfere with,
restrain, or coerce Wildberger in the exercise of the rights
protected by the Statute.
III. Positions of the Parties
A. The Charging Party's Exceptions
The Charging Party does not except to the Judge's specific
findings of fact. Instead, he argues that the Judge committed
numerous procedural errors that resulted in the denial of due
process. He requests that the case be reheard by another judge.
Specifically, Wildberger contends that the Judge erred by:
1) consolidating all three complaints on the day of hearing;
2) not permitting the Charging Party to participate in the
hearing;
3) ordering the Charging Party sequestered;
4) denying motions of the Charging Party that would have more
fully developed the record;
5) admitting an MSPB Initial Decision into the record, but
striking the Charging Party's response thereto;
6) permitting the introduction of prejudicial testimony
concerning a dispute between Wildberger and AFGE; and
7) basing his findings on a record which was not fully
developed.
Exceptions at 86-87.
B. The Respondent
The Respondent contends that the Judge's findings of fact are
supported by the record. The Respondent further notes that
Wildberger does not address the Judge's factual findings. According
to the Respondent, the Judge correctly concluded that the General
Counsel failed to show that the Respondent violated the Statute as
charged.
Concerning Wildberger's contention that the Judge committed a
number of procedural errors, the Respondent first contends that
Wildberger raised none of the objections at the hearing. The
Respondent specifically notes that Wildberger made no request to
actively participate in the hearing nor did he object to being
sequestered along with other witnesses.
Further, the Respondent contends that the decisions to
consolidate the complaints, limit participation of a party, and
sequester the witnesses were within the Judge's discretion and he did
not abuse that discretion.
The Respondent contends that by admitting the MSPB Initial
Decision affirming Wildberger's removal, the Judge took legitimate
official notice of a decision of another tribunal. On the other
hand, Respondent states that the Judge properly refused to admit
Wildberger's response to the decision because the response
constituted evidence submitted after the record closed. The
Respondent also asserts that Wildberger has not demonstrated how the
testimony concerning his dispute with AFGE "tainted" the proceedings.
Lastly, the Respondent contends that the record was fully
developed. In that regard, the Respondent states that the record
includes three days of testimony and several hundred pages of
exhibits. Respondent also notes that the Judge reconsidered his
ruling at hearing not to admit certain exhibits introduced by the
Charging Party and admitted them after the hearing but prior to his
decision. Respondent asserts that the Judge's failure to mention the
exhibits in his recommended decision does not demonstrate that he did
not consider them.
IV. Analysis and Conclusions
A. The Judge Committed No Reversible Error
Wildberger raises a number of objections to the Judge's conduct
of the hearing, arguing in general terms that he was denied due
process. However, he raised no procedural objections at the hearing.
The issues were first raised in a post-hearing motion to reopen the
hearing, which was denied without comment by the Judge. Wildberger
expands on these arguments in his Exceptions.
As a general rule, matters relating to the orderly conduct of
the hearing are left to the discretion of the Judge. See 5 C.F.R.
2423.19. Rulings with respect to these matters will be reversed
only where that discretion is abused. See Department of Veterans
Affairs Medical Center, Denver, Colorado, 52 FLRA 16, 26 (1996)
(Department of Veterans Affairs); see also Freeman G. Gaffney, 205
NLRB 1012 n.1 (1973). As discussed below, Wildberger has not
demonstrated that the Judge abused his discretion in any way.
Accordingly, Wildberger's procedural exceptions are denied.
1. The Judge Properly Consolidated the Complaints
Among the "duties and powers" committed to the discretion of
the Administrative Law Judges under section 2423.19 of the
Authority's Regulations is the power to consolidate cases upon the
motion of a party. See 5 C.F.R. 2423.19(k); see also Service
Employees Union, Local 87, 324 NLRB No. 124, slip op. at 3 (October
20, 1997) (on motion, judge has discretion to determine if
consolidation is warranted). Although Wildberger asserts (Exceptions
at 97) that consolidation of the complaints added "confusion and
complexity" to the cases and denied him "fairness, due process, and
opportunity to prepare," we find that the Judge did not abuse his
discretion in consolidating the proceedings.
The three complaints concern identical parties. Further, the
relevant events are related, all occurring between April and
September 1992 and involving the same individuals. Although not
initially consolidated, the cases were scheduled to be heard,
seriatim, beginning on December 17, 1992. On December 15, 1992, the
Respondent moved to consolidate the cases to obviate the need for
witnesses to repeat testimony in separate cases and to avoid
duplicate exhibits. The Judge consolidated the cases with no
objection from any party.
Wildberger has not demonstrated any prejudice resulting from
the consolidation, nor has he provided any explanation as to how
consolidation added confusion to the proceedings. As all cases were
scheduled to be heard beginning on December 17, the consolidation did
not unfairly affect any party's preparation. The Judge's
determination to consolidate the cases, rather than hear them
consecutively, was a reasonable exercise of discretion.
2. The Judge Did Not Impermissibly Limit Wildberger's
Participation in the Hearing
a. Wildberger Made No Request to Participate in
the Hearing
At the opening of the hearing, with Wildberger in attendance,
the Judge asked if the Charging Party wished to make an appearance.
Counsel for the General Counsel replied that he did not. Transcript
at 5. Wildberger made no objection. Immediately thereafter, Counsel
for the General Counsel moved to sequester the witnesses. There were
no objections and the Judge granted the motion. Wildberger, the
first witness to testify, was present during this exchange.
Transcript at 15-16. After his testimony, Wildberger left the
hearing, again without objection. Transcript at 129.
On December 21, 1992, the third day of hearing, Wildberger
entered an appearance for the purpose of introducing 88 exhibits into
the record. These exhibits were his responses to the Respondent's
proposal to remove him from federal service. The Judge rejected the
exhibits at that time but subsequently reconsidered and entered the
exhibits into the record. Judge's Order, January 28, 1993.
Wildberger made no other request to participate in any manner.
Although he did not raise the issue of participation at
hearing, Wildberger did raise this objection to the Judge in a post-
hearing motion. Nonetheless, we conclude that Wildberger's failure
to raise the issue at hearing, when it would have been most
appropriate, is a factor to be considered in evaluating the Judge's
exercise of discretion. For the reasons discussed below, the Judge
reasonably rejected Wildberger's belated requests to reopen the
hearing and to actively participate therein.
b. Wildberger Knew or Should Have Known of His
Right to Participate
Wildberger states that he was unaware of his right to
participate in the hearing and that because he was appearing pro se,
the Judge had a "special responsibility" to assist him. Exceptions
at 102. Wildberger's contentions are without merit.
First, the rights of charging parties to participate in ULP
hearings are a matter of public record. See 5 C.F.R. 2423.16.
Wildberger is accountable for knowing the regulations, i.e., that he
had the right and opportunity to fully participate in the case. See
American Federation of Government Employees, Local 2065 and U.S.
Department of the Navy, U.S. Marine Corps, 50 FLRA 538 (1995)
(parties filing actions with the Authority are responsible for
knowing statutory and regulatory requirements); see also Cowin and
Company, 322 NLRB 1091 n.1 (1997) (Judge is not obligated to inform
charging party of right to question witnesses).
Second, evidence suggests that Wildberger was aware of his
right to participate in the hearing and acquiesced in his limited
role. Wildberger is an experienced representative in federal
employee litigation. He was president of the Council of SBA locals
and of the SBA Headquarters local from 1987 until September 1991. In
that dual capacity, he filed numerous ULP charges as well as
represented employees in MSPB cases, cases before the Equal
Employment Opportunity Commission, and grievances. At the time of
the hearing in the instant case, he was representing himself in his
MSPB appeal.
Further, there is record evidence that Wildberger knowingly
limited his participation. At the final day of hearing, while
arguing for the admittance of certain exhibits, Wildberger stated, "I
haven't cross-examined anybody. I haven't called or insisted that
certain people be called that I thought would be useful to the
record. I saved it all for these particular documents and that's all
I'm really asking for." Transcript at 425-26. These statements
imply that Wildberger made a knowing choice not to call witnesses or
otherwise actively participate in the hearing.
Finally, even had Wildberger requested to participate further,
the extent to which his request would have been granted is
speculative. A charging party's right to participate in a ULP
hearing "shall be limited to the extent prescribed by the
Administrative Law Judge." 5 C.F.R. 2423.16. Although the
Authority has had limited opportunity to comment on the respective
roles of the General Counsel and the charging party, it is recognized
that the General Counsel has the lead role in prosecuting the case.
See Consumer Products Safety Commission, 4 FLRA 803, 812 n.4 (1980);
see also Spector Freight System, Inc., 141 NLRB 1110, 1111 (1963)
(extent of charging party's participation in proceeding subject to
discretion of judge, reviewable only for abuse of that discretion).
We find, therefore, no abuse of discretion by the Judge in this
regard.
For all these reasons, we conclude that the Judge did not
improperly restrict Wildberger's participation in the hearing.
3. Wildberger Was Not Unfairly Sequestered
As noted above, no objections were made to the General
Counsel's motion to sequester the witnesses. Nor was any request
made to exclude Wildberger, as Charging Party, from the sequestration
order. Determinations with respect to sequestering witnesses fall
within the Judge's discretion under 5 C.F.R. 2423.19(s). Under the
circumstances present in this case, the Judge did not abuse his
discretion.
4. The Judge Properly Denied Wildberger's Post-Hearing
Motions
Wildberger excepts to the Judge's denial of his post-hearing
motions. Specifically, Wildberger moved to reopen the hearing, to
compel the production of documents and for an extension of time to
file his post-hearing brief. The Judge granted the extension of time
but denied the other motions. Wildberger excepts from these denials.
a. The Motion to Reopen the Hearing
Consistent with the discretion afforded an Administrative Law
Judge in connection with the procedural matters discussed above, the
Judge "ha[d] discretion to determine whether the record should be
reopened for additional evidence." See Pension Benefit Guaranty
Corporation, 52 FLRA 1390, 1398 (1997) (PBGC), aff'd Power v. FLRA,
No. 97-1414 (D.C. Cir. July 10, 1998); see also 5 C.F.R.
2423.19(k); cf. National Labor Relations Board v. Cutter Dodge,
Inc., 825 F.2d 1375, 1380 (9th Cir. 1987) (The National Labor
Relations Board has considerable discretion in granting or denying
motions to reopen the record, and its "decision on such a motion will
not be set aside unless shown to constitute an abuse of
discretion."). Further, motions to reopen a record are disfavored
and reserved for extraordinary circumstances. PBGC, 52 FLRA at 1399;
see also, Immigration and Naturalization Service v. Abudu, 485 U.S.
94, 107 (1988) ("There is a strong public interest in bringing
litigation to a close as promptly as is consistent with the interest
in giving the adversaries a fair opportunity to develop and present
their respective cases."); Bowman Transportation, Inc. v. Arkansas-
Best Freight System, Inc., 419 U.S. 281, 296 (1974) ("[T]here is
sound basis for adhering to our practice of declining to require
reopening of the record, except in the most extraordinary
circumstances.").
Wildberger based his request to reopen the hearing principally
on his lack of active participation in the hearing, arguing that he
was unaware of his right to participate. As discussed above, this
contention is without merit. In light of Wildberger's failure to
timely request to participate, the Judge's determination not to
reopen the hearing was not an abuse of discretion.
b. The Motion to Compel Production of Documents
Wildberger moved for the Judge to compel the Respondent to
produce certain unspecified documents pursuant to the rules in Jencks
v United States, 353 U.S. 657 (1957) (Jencks), and in Brady v. State
of Maryland, 373 U.S. 83 (1963) (Brady). The Judge properly denied
the motion. Neither the Jencks rule nor the Brady rule compels
disclosure.
The Authority has adopted the Jencks rule, which provides that
a written statement obtained prior to hearing is disclosable for the
purpose of cross-examination after the witness has testified. See
Department of Treasury, Internal Revenue Service, Memphis Service
Center, 16 FLRA 687 n.1 (1984). Wildberger's broad description of
the documents sought makes it difficult to ascertain if these
documents fall within the scope of the Jencks rule. But even
assuming that they would be within the scope of Jencks, the Judge
properly denied Wildberger's motion to disclose the documents. The
Jencks rule permits disclosure solely for the purpose of cross-
examination. Because the hearing had closed and the Judge had denied
the motion to reopen proceedings, the documents could not be used for
cross-examination and, therefore, there is no entitlement under
Jencks. See United States v. Clay, 495 F.2d 700, 709-10 (7th Cir.
1974) (post-hearing motion for documents under Jencks untimely
because documents could only be used during cross-examination).
The Brady rule requires that prosecutors in criminal
proceedings not withhold exculpatory evidence from defendants.
Brady, 373 U.S. at 87. However, Brady is not applicable in
administrative proceedings. See Mister Discount Stockbrokers, Inc.
v. Securities and Exchange Commission, 768 F.2d 875, 878 (7th Cir.
1985); see also Local 259, United Automobile, Aerospace and
Agricultural Implement Workers of America, 276 NLRB 276, 296 n.91
(1985) (Brady is inapplicable to National Labor Relations Board
proceedings).
Wildberger relied solely on Jencks and Brady. Accordingly, the
Judge committed no error in denying the motion.
5. The Judge Properly Refused to Admit Evidentiary
Material Attached to Wildberger's Post-hearing Brief
Wildberger objects that the Judge permitted the Respondent to
introduce the MSPB Initial Decision concerning his removal, but
denied the introduction of his petition for review of that decision.
Wildberger's removal action was pending before the MSPB at the time
of the hearing and was the subject of testimony. The MSPB Initial
Decision issued after the hearing closed, but prior to the submission
of post-hearing briefs. The Respondent attached the decision to its
brief. Wildberger attached his petition for review, which included
several hundred pages of exhibits, affidavits, and other evidentiary
material.
The Respondent moved to strike all of Wildberger's attachments
except the petition for review itself. The Respondent contended that
the material constituted untimely attempts to introduce evidence into
the record. The Judge granted the motion to strike. SBA, 51 FLRA at
427 n.1.
Contrary to Wildberger's contentions, the Judge did not abuse
his discretion. The Judge reasonably took official notice of the
decision of the MSPB issued after the hearing closed, where those
proceedings had been the subject of substantial testimony at the
hearing. See SBA, 51 FLRA at 413 n.1; see also National Treasury
Employees Union, 53 FLRA 1541, 1560 (1998) (Judge took official
notice of decision of other forum because it was "in the public
domain"). Wildberger, on the other hand, attempted to introduce, in
the guise of a response to MSPB, new evidentiary material after the
close of the record. See Department of the Air Force, Headquarters,
Air Force Logistics Command, Wright Patterson Air Force Base, Ohio,
22 FLRA 529, 532 (1986) (Authority denied request to take official
notice of evidence presented in a different case). As noted above,
the reopening of the record to accept new evidence is left to the
discretion of the Judge and, in any event, is disfavored. Wildberger
has not shown that the Judge abused that discretion.
6. The Judge Properly Permitted Introduction of
Testimony Concerning a Dispute Between Wildberger and
AFGE
Wildberger contends that the Judge erred by including certain
testimony concerning Wildberger's dispute with AFGE, because such
testimony was prejudicial and tainted the proceedings. The
determination of matters to be admitted into evidence is within the
broad discretion of an Administrative Law Judge under section
2423.19(g) of the Authority's Regulations. See Department of
Veterans Affairs, 52 FLRA at 22. Wildberger only argues in
conclusory terms that the testimony "tainted" the proceedings.
Further, the testimony did not concern the case before us but was
relevant only to the removal complaint, which was never considered by
the Judge on its merits, and was subsequently dismissed on
jurisdictional grounds by the Authority. Wildberger's conclusory
contentions are insufficient to demonstrate that the Judge abused his
discretion.
7. The Judge Did Not Rely on an Incomplete Record
Wildberger contends that the Judge made findings of fact and
credibility determinations based on an incomplete record. Exceptions
at 113. In making this claim, Wildberger repeats his arguments
regarding his lack of participation in the hearing. He also stresses
the Judge's alleged failure to consider his 88 exhibits. Again,
Wildberger's arguments are without merit.
As discussed above, the Judge did not impermissibly limit his
participation in the hearing. With respect to Wildberger's exhibits,
the Judge admitted them into the record. Wildberger acknowledges
this but argues that the Judge's failure to reference any of the
exhibits shows that they were not considered. However, failure to
cite evidence does not show that it was not considered. See State of
Wyoming v. Alexander, 971 F.2d 531, 538 (10th Cir. 1992) (decisional
entity need not comment on every piece of evidence presented to it)
(Wyoming v. Alexander); see also Diaz v. Chater, 55 F.3d 300, 308
(7th Cir. 1995) (administrative law judge need not provide evaluation
of every piece of evidence). Wildberger fails to explain with any
specificity how any evidence militates against the Judge's factual
findings or credibility determinations. See Wyoming v. Alexander,
971 F.2d at 538 (mere allegation that decisional entity did not
properly consider party's evidence inadequate to grant review).
B. No Other Exceptions Were Taken to the Judge's Decision
Noting the absence of exceptions to any of the Judge's specific
findings of fact or conclusions of law, we adopt those findings and
conclusions. Accordingly, we conclude that the Respondent has not
violated section 7116(a)(1) and (2) by any of the conduct alleged in
the complaint.
V. Order
The complaint in Case No. WA-CA-21060 is dismissed.
FOOTNOTES:
(If blank, the decision does not
have footnotes.)
1. The facts of this case are more fully set out in SBA. We have summarized the relevant background here. Those facts specifically relevant to the issue on remand are set out in our discussion of the Judge's decision, infra.
2. As relevant here, section 7116(d) states: "Issues which can properly be raised under an appeals procedure may not be raised as unfair labor practices' prohibited under this section."
3. Wildberger's MSPB appeal had included allegations that: (1) his termination was in retaliation for protected activity, citing matters included in his removal complaint and the disparate treatment complaint; and (2) his supervisor who proposed his removal was motivated by personal animus, citing as evidence the same allegations contained in the threat complaint. Subsequent to the Judge's decision, the MSPB upheld Wildberger's removal. Wildberger v. SBA, 69 MSPR 667 (1996). The MSPB considered and rejected Wildberger's affirmative defenses, including his claims that the removal was based on protected organizing activity and that it was motivated by the supervisor's personal animus.
4. Wildberger testified that it had never come to his attention that Respondent had proposed disciplinary action against any other employee for using government equipment. The Judge found that Wildberger "was well aware of Respondent's actions in the case, since he personally signed the settlement agreement on behalf of [AFGE Local 2532.]" SBA, 51 FLRA at 441.
5. The Respondent filed a Motion to Strike the exhibits attached to the Charging Party's exceptions. Wildberger did not respond to the motion. Respondent's motion is granted with respect Charging Party's Exhibits A and F, which are pleadings and exhibits filed by or on behalf of Wildberger in other forums, because these exhibits were not presented to the Judge. See U.S. Department of the Air Force, Headquarters, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 36 FLRA 524, 530 (1990) (Authority will not consider evidence not presented to the Judge). The motion is denied with respect to the remaining exhibits. They are either matters of public record or matters already in the record in this case. The Authority had previously granted Respondent's motion to include a copy of the District Court decision in Wildberger v. American Federation of Government Employees, No. 91-2316 (D.D.C. May 8, 1995). SBA, 51 FLRA at 413 n.1. That decision was subsequently reversed in Wildberger v. American Federation of Government Employees, 86 F.3d 1188 (D.C. Cir. 1996). We take official notice of the reversal of the District Court decision, but note that these proceedings were introduced only with respect to the removal complaint, a matter not at issue here.
6. The Authority revised its unfair labor practice regulations effective October 1, 1997. See 62 Fed. Reg. 46175 (September 2, 1997); 62 Fed. Reg. 40911, 40922 (July 31, 1997). The hearing in this case was held before the effective date of these revisions. Therefore, citations to those sections of the regulations pertaining to the conduct of the hearing refer to the regulations applicable prior to October 1, 1997.
7. Wildberger also contends that the motion to consolidate was untimely citing 5 C.F.R. § 2423.22. Wildberger misreads the applicable regulation. The only time limit for filing prehearing motions applies to motions to change the date of a hearing.
8. Relying on law developed by the MSPB, Wildberger asserts in general terms that the Judge failed to adequately explain his credibility determinations. Wildberger, however, does not specifically identify the grounds for his objections to the Judge's credibility determinations.
9. With respect to the charge that Wildberger was inundated with memoranda, a review of the Judge's findings reveals that he did not specifically account for 7 of the 89 memoranda submitted (General Counsel Exhibits 10, 30, 32, 34, 58, 83, and 84). However, none of the documents omitted by the Judge materially affects his decision because they are either similar in nature to those found non-coercive by the Judge, or because their effect has been independently considered elsewhere in the Judge's decision. Exhibit 10 is a copy of Exhibit 15, properly identified by the Judge as a work rule reminder. Exhibits 30, 32, and 34 are, respectively, Respondent's proposal, dated May 27, 1992, to suspend Wildberger for 5 days for insubordination and neglect of duty, Respondent's denial of request for an extension of time to reply to the proposal, and the final decision effectuating the suspension. Exhibit 58 is a supervisory review of a work product. Exhibit 83 is the proposal to remove which was the subject of the removal complaint (also submitted as General Counsel Exhibit 2 in the removal complaint). Exhibit 84 is the assignment to an alternate work site (also submitted as General Counsel Exhibit 98).