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 ]
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).