11:0303(65)CA - Air Force, 438th Air Base Group (MAC), McGuire AFB and AFGE Local 1778 -- 1983 FLRAdec CA

[ v11 p303 ]
The decision of the Authority follows:

 11 FLRA No. 65
 Charging Party
                                            Case No. 2-CA-274
                            DECISION AND ORDER
    The Administrative Law Judge issued the attached Recommended Decision
 in the above-entitled proceeding, finding that the unfair labor practice
 complaint alleging a violation of section 7116(a)(1), (2) and (4) of the
 Federal Service Labor-Management Relations Statute (the Statute) be
 dismissed in its entirety.  The Charging Party filed exceptions to the
 Judge's Decision, and the Respondent filed an opposition to such
    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 and finds that no prejudicial error was
 committed.  The rulings are hereby affirmed.  Upon consideration of the
 Judge's Decision and the entire record in this case, the Authority
 hereby adopts the Judge's findings, conclusions and recommendations.
    IT IS ORDERED that the complaint in Case No. 2-CA-274 be, and it
 hereby is, dismissed.  
 Issued, Washington, D.C., February 10, 1983
                                       Ronald W. Haughton, Chairman
                                       Henry B. Frazier III, Member
                                       Leon B. Applewhaite, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 -------------------- ALJ$ DECISION FOLLOWS --------------------
    Nicholas J. Angelides, Esquire
    James L. Linsey, Esquire
          For the Respondent
    James E. Petrucci, Esquire
    Margaret A. Sipser, Esquire
          For the General Counsel, FLRA
    Herman A. Winters, Jr.
          For the Charging Party
          Administrative Law Judge
                           Statement of the Case
    This case arose pursuant to the Federal Service Labor-Management
 Relations Statute, 5 U.S.C. 7101 et seq. (the Statute), as a result of
 an unfair labor practice complaint filed by the Regional Director,
 Region Two, Federal Labor Relations Authority, New York, New York,
 against the Department of the Air Force, 438th Air Base Group (MAC),
 McGuire Air Force Base (Respondent), based on a charge filed by the
 American Federation of Government Employees, Local 1778, AFL-CIO
 (Charging Party or Union).  The complaint alleged, in substance, that
 Respondent violated sections 7116(a)(1), (2), and (4) of the Statute by
 issuing two negative supervisory potential evaluations to employee Keith
 Van Laarhoven.  One evaluation was issued on July 23, 1979 by Supervisor
 Nagel, and the other was issued on August 8, 1979 by Supervisor Potts.
 /1/ Respondent denied that the evaluations were issued in violation of
 the Statute.
    A hearing was held in this matter at McGuire Air Force Base, New
 Jersey.  The Respondent and the General Counsel, FLRA were represented
 by counsel and afforded full opportunity to be heard, adduce relevant
 evidence, examine and cross-examine witnesses, and file post-hearing
 briefs.  Based on the entire record herein, including my observation of
 the witnesses and their demeanor, the exhibits and other relevant
 evidence adduced at the hearing, and the briefs, I make the following
 findings of fact, conclusions of law, and recommendations.
                             Findings of Fact
    The Charging Party is, and at all relevant times has been, the
 exclusive bargaining representative of an appropriate unit, consisting
 of wage grade and general schedule employees, with certain exceptions,
 serviced by the base civilian personnel office at McGuire AFB, New
 Jersey.  Pursuant to Executive Order 11491, as amended, Respondent and
 the Union entered into a collective bargaining agreement on August 9,
 1977, for a term of three years, thus, governing the relationship
 between the parties during the periods relevant to this case.  (Joint
 Ex. 1).
    Keith Van Laarhoven, the alleged discriminate, is an aircraft
 mechanic who has worked at Respondent's New Jersey facility for about
 eight years.  (Tr. 8).  During this period, Van Laarhoven worked for
 various supervisors;  and at the times most material herein, was under
 the direct supervision of Klaus Nagel.  Specifically, Nagel supervised
 his work in 1977 and again from May 1978 until October 1979.  (Tr. 75).
 During the period January 1979 through October 1979 Master Sergeant
 Ronald Potts was the Flight Chief of "A" Flight, was Nagel's supervisor,
 and was, therefore, the second level supervisor of Van Laarhoven.  (Tr.
 197).  Van Laarhoven has been a Union member for about eight years and
 has held the position of executive vice-president for the Union since
 about April 1979, after serving one year as vice-president.  Before
 that, he served as a shop steward for about one and a half years.  (Tr.
 8, 9, 58).  In these capacities he has used official time to represent
 the Union and unit employees while working on unfair labor practices,
 grievances, equal employment opportunity cases, and negotiations.  (Tr.
 9).  Supervisors Nagel and Potts were generally aware of Van Laarhoven's
 union activities.  (Tr. 109-111, 219-220).
    Respondent utilizes a system of annual performance appraisals
 prepared by supervisors for each employee under his/her supervision.
 The appraisal form consists of 19 area of employees performance during
 the prior year, to which the supervisor assigns a letter rating from "A"
 through "G".  The specific meaning of each letter designation is as
          A - Almost no supervision required
          B - Much less supervision than others at his or her grade level
          C - Somewhat less supervision than others at his or her grade
          D - About the same amount of supervision as others at his or
       her grade level
          E - Somewhat more supervision than others at his or her grade
          F - Much more supervision than others at his or her grade level
          G - Constant supervision because the employee is just learning
       this aspect of his or per position
    Van Laarhoven's annual appraisal, prepared by Nagel in February 1977,
 showed four (4) "A", three (3) "B), six (6) "C" and six (6) "D" ratings,
 with no ratings below average.  Included among those areas where Van
 Laarhoven was considered much better than average or higher (A or B
 rating) were:  "Attention to details and close accuracy" (B),
 "reliability of work habits and dependability in attendance" (A),
 "following instructions, regulations and directives" (B), and
 "minimizing risks by applying safety practices" (A).  (General Counsel's
 Ex. 6).
    His February 1978 appraisal, prepared by Master Sergeant Doss, showed
 four (4) "A", five (5) "B", and ten (10) "C" ratings, all above average.
  He was again given the highest rating for "reliability of work habits
 and dependability in attendance" (A), "minimizing risks by applying
 safety practices" (A), as well as others;  and was elevated to a much
 better than average rating in "planning and accepting work priorities"
 (B).  (General Counsel's Ex. 7).
    At the end of January 1979, Supervisor Nagel prepared Van Laarhoven's
 last annual appraisal prior to the supervisory potential appraisal at
 issue herein.  The 1979 evaluation showed six (6) "A", seven (7) "B" and
 six (6) "C" ratings, all above average.  Included among the foregoing
 were elevation to the highest rating in "attention to details and close
 accuracy" (A) and "following instructions, regulations and directives"
 (A).  Similarly, Van Laarhoven's ratings in "accepting authority and
 direction from others" (B) and "willingness to try new techniques and
 adjust to changing requirements and conditions" (B) were raised to much
 better than average as compared with prior ratings.  (General Counsel's
 Ex. 8).
    Van Laarhoven was directly in involved in the filing of unfair labor
 practice charges against Respondent in April 1979 alleging that
 supervisor Nagel improperly denied official time for Van Laarhoven to
 perform representational activities.  (Tr. 9, 10;  General Counsel's Ex.
 2).  He provided the FLRA agent with an affidavit concerning this charge
 on official time.  (Tr. 11).  Van Laarhoven was also involved with a
 charge filed on August 1, 1979 concerning Respondent's failure to
 bargain about a change in the procedures for issuing radios to aircraft
 tow teams.  (Tr. 12-17;  General Counsel's Ex. 3).
    Several weeks prior to the events herein, Van Laarhoven approached
 Potts to ask if there was some way he could correct the apparent
 adversary relationship between himself and Nagel.  He noted that there
 was "a lot of uneasiness;  there's a lot of charges," and asked how they
 could improve labor relations.  Potts responded:  "Well, we'll solve it
 when we fire you." (Tr. 35, 60).  /2/
    In about May or June 1979 Van Laarhoven applied for a first-level
 supervisory position at McGuire AFB.  /3/ (Tr. 17).  Consequently,
 Nagel, Van Laarhoven's immediate supervisor, received instructions from
 the civilian personnel office to complete an AF Form 2455, "Supervisory
 Evaluation of Employee Potential for First Level Supervisory Position,"
 on Van Laarhoven.  (Tr. 76;  General Counsel's Ex. 4).  Nagel completed
 the evaluation, following the procedures reflected on the back of the
 form.  (Tr. 76, 120).  These instructions provided, in part, as follows:
          The evaluation process involves making two ratings on each of
       six elements considered critical for first-level supervisory
       position.  The first rating on each element is made of the
       employee potential to carryout the responsibility of the
       first-level supervisory position.  For non-supervisory employees
       this represents the immediate supervisor's prediction of the
       employee's performance in the supervisory position.
          The second rating required for each element is the immediate
       supervisor's judgment of the frequency of which the employee
       performs the activity described by each element in his current
 Possible ratings of supervisory potential on the form ranged from
 "Outstanding" (A) to "Marginal" (E), while ratings for frequency of
 performance in current position ranged from "Frequent" (F) to "Never"
    Nagel rated Van Laarhoven as having marginal supervisory potential,
 (E), in five of the elements (i.e. making appropriate decisions under
 stressful conditions, supporting organizational policy and reflecting
 desired image, accepting responsibility, delegating authority and
 accepting consequences, and motivating others through leadership
 capacity) and as average, (C), in the sixth (i.e. upholding the
 principles of social action programs such as EEO and upward mobility).
 With respect to frequency of performance in current position, two of the
 elements reflected performance as "Sometimes", (G), while four were
 marked "Never" (I).  (General Counsel's Ex. 4).  Nagel discussed his
 rating with Master Sergeant Potts, who agreed with the rating and signed
 it as the reviewing official.  (Tr. 76, 198, 211).
    Nagel testified at hearing concerning his reasons for giving Van
 Laarhoven such a poor evaluation, as follows:
          1.  A reprimand for refusal to comply with an order to sign out
       tow team radios.  (Tr. 89).
          2.  Tardiness.  (Tr. 91).
          3.  Leaving a refueling operation without being properly
       relieved.  (Tr. 92-94).
          4.  The fact that other employees allegedly did not want to
       work with Van Laarhoven.  (Tr. 96-98).
          5.  Van Laarhoven's delay in starting work while preparing an
       unfair labor practice charge.  (Tr. 99).
          6.  Towing aircraft too slowly.  (Tr. 95).
          7.  Taking an unauthorized break on the way to obtain hardware.
        (Tr. 99).
 I credit the following testimony concerning these reasons:  1.  Two Team
    Just one month earlier, Van Laarhoven, while acting as tow team
 chief, refused to comply with Nagel's direct order to sign out radios to
 the tow team, complaining that the policy has not been negotiated with
 the Union.  /4/ Another individual had to be appointed to perform the
 duty.  (Tr. 86-89).  Van Laarhoven's conduct resulted in a three-hour
 towing delay which had a bumping effect on aircraft maintenance
 operations.  (Tr. 100).  As a result, Van Laarhoven was given a letter
 of reprimand by Nagel.  (Tr. 89;  Respondent's Ex. 1).  2.  Tardiness
    Van Laarhoven was often five to ten minutes late for work.  Nagel had
 spoken to Van Laarhoven about being later numerous times and, at one
 time, made an entry regarding tardiness in Van Laarhoven's AF Form 971,
 the supervisor's record of employees.  In accordance with an agreement
 Nagel made with Van Laarhoven, the entry was removed upon Van
 Laarhoven's improvement in reporting to work on time over a 90-day
 period.  /5/ (Tr. 91, 92).  3.  The Refueling Incident
    Van Laarhoven, while acting as a refueling supervisor in April 1979,
 walked away from a refueling operation one day about noon, stating he
 had had enough and was going to lunch.  He had been approached by
 quality control personnel and advised that they wanted to evaluate the
 refueling operation.  Van Laarhoven's conduct in walking off the job
 before being properly relieved brought the refueling operation to a halt
 until he could be replaced.  (Tr. 92-94).  /6/ 4.  Views of Other
    Nagel took into account comments he received from some of Van
 Laarhoven's fellow workers, military and civilian, who stated that they
 did not want to work with Van Laarhoven because he would not carry his
 own weight on the job.  Nagel received such complaints from Mr. Vargas,
 A/1C Casole, and Earl Young.  (Tr. 96-98).  5.  Delaying Starting Work
    On an uncertain date, Nagel observed Van Laarhoven at the beginning
 of his shift writing what Van Laarhoven said was a report for a ULP.
 Nagel told Van Laarhoven that he should work on the aircraft, or else
 request time for union business, or sign for annual leave.  (Tr.
 99-100).  6.  Towing Aircraft Too Slowly
    Nagel considered that Van Laarhoven was a slow worker.  When
 periodically assigned as tow team chief, he performed very slowly,
 normally towing about two aircraft during an eight-hour shift where
 others would tow five to six aircraft.  (Tr. 94, 95).  Van Laarhoven
 acknowledged that whenever he could not tow by the check list, even for
 minor items, he would stop and seek authorization.  (Tr. 52-53).  7.
 Unauthorized Break
    Nagel considered information received that Van Laarhoven has taken an
 unauthorized break while going to obtain small hardware.  (Tr. 99).  8.
 Improperly Grounding Aircraft for Minor Discrepancies
    Nagel considered an occasion where he found that Van Laarhoven had
 improperly grounded an aircraft for minor discrepancies.  The
 discrepancies were found to be within the limits established for safe
 aircraft operation.  (Tr. 101-102).
    Nagel testified that, although he might have relied on incidents
 which occurred prior to February 1979 in evaluating Van Laarhoven's
 potential, those testified to at the hearing occurred between February
 1979, and the July 79 evaluation.  (Tr. 121-123).  He did not make notes
 of these incidents (Tr. 123) and did not pursue disciplinary action
 against Van Laarhoven based upon them.  (Tr. 126-127).  Nagel attributed
 the acknowledged difference in the ratings between Van Laarhoven's
 February 1979 supervisory appraisal of current performance (General
 Counsel's Ex. 8) and the July 79 evaluation of Van Laarhoven's
 supervisory potential on the events which occurred after the February
 appraisal (Tr. 127-128) and to the radical change in Van Laarhoven's
 performance before and after February 1979.  (Tr. 135).  He further
 testified that the earlier performance ratings he had given Van
 Laarhoven (General Counsel's Ex. 6 and 8), were inflated, as were all
 such ratings at McGuire, and were really no better than average. There
 were lower than appraisals given to his other employee's, and, in his
 opinion, were insufficient to warrant promotion.  (Tr. 135-136).  Nagel
 also acknowledged that the incidents considered were not limited to
 those which he personally observed, but were also based upon
 information, which he believed truthful, which was supplied by others.
 (Tr. 134).
    Nagel had previously prepared a supervisory potential evaluation on
 another Union official.  In February 1979, Nagel prepared an evaluation
 of supervisory potential (Respondent's Exhibit 2) and two supervisory
 appraisals of current performance in January 1979 and January 1980
 (Respondent's Ex. 3 and 4) for Mr. Dennis Abplanalp, who was also a vice
 president of the Union.  Mr. Abplanalp was given outstanding ratings by
 Mr. Nagel on these occasions.  Abplanalp was active in the Union, had
 filed a grievance against Nagel, and had also used official time off for
 union activities.  (Tr. 102-106).  Respondent's summary of official time
 given to Union officials for representational activities reflects that
 Abplanalp was granted 282 hours while Van Laarhoven was granted 772
 hours during 1979.  (Tr. 279-283;  Respondent's Ex. 6).
    When Van Laarhoven received the evaluation for supervisory potential
 from Nagel, he protested the very low ratings, refused to sign the
 appraisal, and stated that he was seeking Union assistance.  He did so,
 and Union Representative Castellano was assigned to the matter.  After
 discussing the situation with Van Laarhoven, Castellano visited Master
 Sergeant Potts, the reviewing official for the appraisal Nagel had
 prepared and Nagel's immediate supervisor.  (Tr. 20, 145).  Castellano
 informed Potts that it was his opinion that Nagel could not give Van
 Laarhoven an unbiased evaluation since Van Laarhoven was involved with
 unfair labor practices and grievances against Nagel.  He asked Potts to
 re-do the evaluation.  Potts agreed.  Potts and Castellano thereupon
 signed a written agreement on July 26, 1979 which stated as follows:
          It was agreed today that MSgt. Potts will give Mr. Van
       Laarhoven a Supervisory Evaluation without the influance (sic) of
       Mr. Nagle (sic).  This Evaluation will be given within two days of
       this letter.  (General Counsel's Ex. 10;  Tr. 146).
    On August 8, 1979, Potts met with Van Laarhoven and Castellano, told
 them he had re-done the evaluation as per his agreement with the Union,
 and presented it to them.  (Tr. 22, 148, 201).  The men quickly reviewed
 the appraisal and saw that it was identical to the one prepared by Nagel
 except in one category where Potts had moved the rating for "Frequency
 of Performance In Current Position" from "Never" to "Infrequently."
 (General Counsel's Ex. 5).  The men protested, demanded justification,
 and a detailed review ensued of Potts' asserted reasons for each rating.
  The meeting lasted for one to two hours.  (Tr. 148, 22, 201).
    In the course of the meeting, Van Laarhoven confronted Potts with his
 statement made several weeks earlier, in which he stated his view that
 labor relations and the tension with Nagel would be "solved" when Van
 Laarhoven was fired.  According to Castellano, Potts said he had only
 been joking.  Castellano reproached Potts, saying that the discharge of
 a man was no joking matter.  /7/ (Tr. 185;  35).
    Both the General Counsel and the Respondent elicited extensive
 testimony from various witnesses, including Master Sergeant Potts for
 Respondent, concerning the Potts' appraisal, his alleged justification
 for the ratings, incidents he relied upon, and the content of the
 discussion and argument on these matters during the August 8 meeting.
 Master Sergeant Potts' justification for the August 8, 1979 rating,
 which I credit, included (1) Van Laarhoven's stopping an aircraft towing
 operation and refusing to take responsibility for going around a hole
 when this could have been accomplished safely, (2) Van Laarhoven's
 reprimand for refusing to sign out tow team radios, (3) leaving an
 aircraft refueling operation prior to the arrival of relief, (4) Van
 Laarhoven's failure to clear major flight discrepancies prior to leaving
 the aircraft, (5) tardiness for work, and (6) slowness and writing up of
 minor discrepancies which were within acceptable limits.
    Master Sergeant Potts testified on rebuttal, and for the first time
 in the proceeding, that after his meeting with Castellano and Van
 Laarhoven on August 8, and notwithstanding his written agreement with
 the Union, he threw the evaluation away, never submitted it, and it was
 never placed in Van Laarhoven's personnel file.  /8/
    Sergeant Bobby Lee Hall testified concerning Van Laarhoven's
 performance.  Hall worked with Van Laarhoven as a co-worker in 1975.  On
 occasion, Hall assigned him work during the period 1975 through 1979.
 During the first half of 1979, through July, Hall was assigned to the
 grave shift and only saw Van Laarhoven coming to work in the mornings as
 he was leaving.  From August 1, 1979 until July 9, 1980 Hall worked
 strictly on the day shift.  Hall described Van Laarhoven's performance
 of duty as having been very poor during the entire period since 1975.
 Hall testified that he believed it would be false to state that Van
 Laarhoven's performance was satisfactory prior to a rapid decline in
 some period during 1979.  Hall testified to specific aspects of Van
 Laarhoven's performance which occurred since 1975 and which he had
 related to Mr. Nagel.  In this regard, Hall stated that Van Laarhoven
 would sometime take 30 to 45 minutes to get to his assigned aircraft by
 taking his time and lingering at bench stock.  On several occasions Van
 Laarhoven was late returning from lunch and failed to provide Hall with
 justification when asked.  In the summer of 1978, Van Laarhoven refused
 to block an aircraft in the rain because he did not have rain gear with
 him-- a requirement of the job.  Military personnel did not want to work
 with Van Laarhoven, and several asked Hall not to be assigned with him
 because he would not do his share of the work.  Van Laarhoven, though
 qualified, was very reluctant to sign off "Red X's" and Hall would have
 to come by, inspect the work, and sign them off.  Hall also testified
 that, in order to get any kind of satisfactory performance from Van
 Laarhoven, he would assign him to aircraft which were scheduled for
 departure the same day.  (Tr. 247-264).
    The next annual appraisal on Mr. Van Laarhoven was prepared by his
 then supervisor Kenneth Counts on January 31, 1980 based on his
 performance during the period from October 28 or 29, 1979 to December
 31, 1979.  Mr. Van Laarhoven was given the highest rating in six
 categories, the second highest rating in twelve categories, and one
 above average rating.  (General Counsel's Ex. 9;  Tr.243-246).
                Discussion, Conclusions and Recommendations
    In urging a finding that Mr. Van Laarhoven's poor supervisory
 potential evaluation on July 23, 1979 was in retaliation for his union
 activities, or because of union considerations, the General Counsel
 points to Mr. Van Laarhoven's past and subsequent above average
 performance ratings, Potts' statement of solving labor relations
 problems when Van Laarhoven was fired, and the timing of the low
 supervisory potential evaluation by Nagel just three months after Van
 Laarhoven assisted in filing an unfair labor practice charge involving
 Nagel.  I have credited major positions of the detailed testimony of
 Respondent's witnesses, particularly Mr. Nagel, Master Sergeant Potts,
 and Sergeant Hall in making the above findings of fact.  Accordingly, it
 is concluded that the General Counsel has not proved the allegations of
 the complaint by a preponderance of the evidence.
    The record shows affirmatively that during the pertinent period Mr.
 Van Laarhoven demonstrated poor performance and conduct which would
 naturally be major factors in a supervisor's current evaluation and
 prediction of employee performance in a supervisory capacity.  Just one
 month prior to the rating, Van Laarhoven refused to comply with his
 supervisor's order to check out tow team radios.  This failure to obey
 orders resulted in a three hour operational delay.  Van Laarhoven
 received an official reprimand for this conduct.  Three months prior to
 the evaluation, the supervisor was notified that Van Laarhoven had
 brought a refueling operation to a halt by going to lunch before being
 properly relieved.  The record also reflects less severe instances of
 poor performance during the period including tardiness, unauthorized
 breaks, and improperly grounding of aircraft for minor discrepancies
 which were within safety limits.  Thus, even if Respondent were in some
 part motivated by union considerations, the Respondent has shown by a
 preponderance of the evidence that the same evaluation would have been
 given even in the absence of protected activity.  See Internal Revenue
 Service, Washington, D.C., 6 FLRA No. 23 (1981), Veterans
 Administration, Medical and Regiona