18:0142(24)CA - DOD, Air Force, HQ 47th Flying Training Wing (ATC), Laughlin AFB, TX and AFGE Local 1749 -- 1985 FLRAdec CA



[ v18 p142 ]
18:0142(24)CA
The decision of the Authority follows:


 18 FLRA No. 24
 
 UNITED STATES DEPARTMENT OF DEFENSE 
 DEPARTMENT OF THE AIR FORCE 
 HEADQUARTERS 47TH FLYING TRAINING 
      WING (ATC) 
 LAUGHLIN AIR FORCE BASE, TEXAS 
 Respondent
 
 and 
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, LOCAL 1749, AFL-CIO 
 Charging Party
 
                                            Case No. 6-CA-30446
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued the attached Decision in the
 above-entitled proceeding, finding that the Respondent had engaged in
 certain unfair labor practices alleged in the complaint and recommending
 that it be ordered to cease and desist therefrom and take certain
 affirmative action.  The Judge recommended dismissal of that portion of
 the complaint alleging that the Respondent violated section 7116(a)(1)
 and (2) of the Statute by not selecting the discriminatee for a job on
 or about January 5, 1983, as such conduct occurred more than six months
 prior to the filing of the charge.  He also recommended dismissal as to
 allegations concerning the conduct of one of the Respondent's
 supervisors or management officials, as the evidence did not establish
 any involvement by him during the six months prior to the filing of the
 charge.  Noting the absence of exceptions in this regard, the Authority
 adopts these recommendations and, as the Judge inadvertently neglected
 to do, has modified the Order to dismiss those portions of the
 complaint.  As to the remainder of the Judge's Decision, the Respondent
 filed exceptions and a brief, and the General Counsel filed a brief in
 support of its opposition to Respondent's exceptions.
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Federal Service Labor-Management Relations
 Statute (the Statute), the Authority has reviewed the rulings of the
 Judge made at the hearing and finds that no prejudicial error was
 committed.  The rulings are hereby affirmed.  Upon consideration of the
 Judge's Decision and the entire record, the Authority hereby adopts the
 Judge's findings, /1/ conclusions and recommended Order, /2/ as modified
 herein.  /3/
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Rules and Regulations of the
 Federal Labor Relations Authority and section 7118 of the Statute, the
 Authority hereby orders that the United States Department of Defense,
 Department of the Air Force, Headquarters 47th Flying Training Wing
 (ATC), Laughlin Air Force Base, Texas, shall:
 
    1.  Cease and desist from:
 
    (a) Refusing to promote Hector Guadarrama or any other employee
 because of protected union activities.
 
    (b) Considering the protected union activities of employees in making
 determinations whether employees shall be promoted.
 
    (c) In any like or related manner interfering with, restraining, or
 coercing Hector Guadarrama or any other employee in the exercise of
 rights assured by the Federal Service Labor-Management Relations
 Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute:
 
    (a) Retroactively promote Hector Guadarrama to the position of
 Engineering Equipment Operator, WG-5716-10, reimburse him for the loss
 of pay he suffered by reason of the failure to promote him on June 2,
 1983, due to his protected union activities, and restore to him any
 rights or privileges he may have lost by such action.
 
    (b) Post at the United States Department of Defense, Department of
 the Air Force, Headquarters 47th Flying Training Wing (ATC), Laughlin
 Air Force Base, Texas, copies of the attached Notice on forms to be
 furnished by the Federal Labor Relations Authority.  Upon receipt of
 such forms, they shall be signed by an appropriate official and shall be
 posted and maintained for 60 consecutive days thereafter, in conspicuous
 places, including all bulletin boards and other places where notices to
 employees are customarily posted.  Reasonable steps shall be taken to
 ensure that such Notices are not altered, defaced, or covered by any
 other material.
 
    (c) Pursuant to section 2423.30 of the Authority's Rules and
 Regulations, notify the Regional Director, Region VI, Federal Labor
 Relations Authority, in writing, within 30 days from the date of this
 Order, as to what steps have been taken to comply herewith.
 
    IT IS FURTHER ORDERED that the remainder of the complaint in Case No.
 6-CA-30446 be, and it hereby is, dismissed.  
 
 Issued, Washington, D.C., May 24, 1985
 
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
                          NOTICE TO ALL EMPLOYEES
 
  PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
 RELATIONS
 AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
 OF TITLE
 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS
 WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT refuse to promote Hector Guadarrama or any other employee
 because of protected union activities.
 
    WE WILL NOT consider the protected union activities of employees in
 making determinations whether employees shall be promoted.
 
    WE WILL NOT in any like or related manner interfere with, restrain,
 or coerce Hector Guadarrama or any other employee in the exercise of
 rights assured by the Federal Service Labor-Management Relations
 Statute.
 
    WE WILL retroactively promote Hector Guadarrama to the position of
 Engineering Equipment Operator, WE-5716-10, reimburse him for the loss
 of pay he suffered by reason of the failure to promote him on June 2,
 1983, due to his protected union activities, and restore to him any
 rights or privileges he may have lost by such action.
                                       (Agency or Activity)
 
    Dated:  By:  (Signature) (Title)
 
    This Notice must remain posted for 60 consecutive days from the date
 of posting, and must not be altered, defaced, or covered by any other
 material.
 
    If employees have any questions concerning this Notice or compliance
 with its provisions, they may communicate directly with the Regional
 Director, Region VI, Federal Labor Relations Authority, whose address
 is:  P.O. Box 2640, Dallas, Texas 75221, and whose telephone number is:
 (214) 767-4996.
 
 
 
 
 
 
 
 
 
  --------------------
 
 S
    For the General Counsel
 
    Major Charles D. Beckenhauer
    For the Respondent
 
    Before:  FRANCIS E. DOWD, Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This is a proceeding under the Federal Service Labor-Management
 Relations Statute, herein referred to as the Statute, 92 Stat. 1191, 5
 U.S.C. 7101 et seq.  It was instituted by the Regional Director of the
 Sixth Region of the Federal Labor Relations Authority by the issuance of
 a complaint and notice of hearing dated January 26, 1984.  The complaint
 was issued following an investigation of an unfair labor practice charge
 filed on September 28, 1983 by American Federation of Government
 Employees, Local 1769, AFL-CIO, herein referred to as the Charging Party
 or Union.  The complaint alleges that United States Department of
 Defense, Department of the Air Force, Headquarters 47th Flying Training
 Wing (ATC), Laughlin Air Force Base, Texas, herein referred to as
 Respondent, alleges that Respondent violated section 7116(a)(1) and (2)
 of the Statute by the following conduct:  (1) unlawfully considering
 Hector Guadarrama's union activity in its selection deliberations on or
 about June 2, 1983 and (2) not selecting Hector Guadarrama for promotion
 to Engineering Equipment Operator, WG-5716-10 (Certificate Number LJ
 063) because of his membership in and activities on behalf of the Union.
  /4/
 
    A hearing was held in Del Rio, Texas at which the parties were
 represented by counsel and afforded full opportunity to adduce evidence
 and call, examine, and cross-examine witnesses and argue orally.  At the
 request of the parties, the time for filing briefs was extended until
 August 27, 1984.  Briefs filed by the Respondent and the General Counsel
 have been duly considered and have been helpful in resolving the issues
 herein.
 
    Upon consideration of the entire record in this case, including my
 evaluation of the testimony and evidence presented at the hearing, and
 from my observation of the witnesses and their demeanor, I make the
 following findings of fact, conclusions of law, and recommended order.
 
                             Findings of Fact
 
    1.  The Union is a labor organization within the meaning of section
 7103(a)(4) of the Statute.
 
    2.  The Respondent is an agency within the meaning of section
 7103(a)(3) of the Statute.  At all times material herein, the following
 named persons occupied positions set opposite their respective names and
 have been and are now agents of Respondent acting on its behalf, and are
 supervisors and/or management officials within the meaning of section
 7103(a)(10) and (11) of the Statute.
 
          Lt. Col. Harvey Manekofsky, Base Civil Engineer
 
          Janet Branch, Civilian Personnel Officer
 
          Staff Sgt. James P. Childs, Supervisor, Civil Engineer Section
 
          Master Sgt. Richard B. Ford, Supervisor, Civil Engineer Section
 
    3.  At all times material herein, Respondent has recognized the Union
 as the exclusive collective bargaining representative of the following
 described unit:
 
          INCLUDED:  All non-supervisory personnel, both GS and Wage
       Board, serviced by the Civilian Personnel Office, Laughlin Air
       Force Base, Texas.
 
          EXCLUDED:  Supervisors, Guards, Professionals, temporary
       employees and personnel employees other than those in purely
       clerical positions.
 
 Since 1978, and at all times material thereafter, the Union and
 Respondent have been parties to a collective bargaining agreement
 covering employees in the unit described above.
 
    4.  Hector R. Guadarrama is employed by Respondent as a Tractor
 Operator.  For approximately the past 11 years, Guadarrama has also
 served as vice-president of the Union.  In that capacity, Guadarrama has
 represented employees on grievances, discrimination cases, and safety
 matters.  Guadarrama has also served as a negotiator for the Union in
 contract negotiations and, in addition, assumes the duties of president
 of the local when the current president is absent.  There is no dispute
 that Guadarrama has engaged in protected activity and that Respondent
 and its agents had knowledge thereof.
 
    5.  In the latter part of 1982, an opening occurred for a WG-11 Crane
 Operator in Guadarrama's work area.  A certificate of employees "fully
 qualified" /5/ for this position subsequently issued which contained the
 names of three employees.  These employees were John Strange, a WG-10
 Heavy Equipment Operator;  Nacho Hernandez, an Inspector who declined
 the position, and Guadarrama.  During the course of the selection
 process, Guadarrama was interviewed for the position by SSgt. Childs and
 Senior Master Sergeant Moore.  Guadarrama was informed in the interview
 by Moore that if he were not selected for the WG-11 Crane Operator
 position he stood a pretty good chance of being selected for the WG-10
 Heavy Equipment Operator job when Strange vacated that position.
 Thereafter, Respondent selected John Strange for the WG-11 Crane
 Operator position.
 
    6.  As a result of Strange's selection, his current position of WG-10
 Heavy Equipment Operator became vacant.  At that point, Respondent
 issued a certificate of employees "fully qualified" for the position.
 /6/ Guadarrama's name was the only name on the certificate and he was
 subsequently interviewed for the position by SSgt. Childs.  Following
 the interview, Guadarrama heard nothing for approximately 15 days
 regarding whether or not he had been selected for the position.
 Consequently, he then asked Mr. B. Flores of the Personnel Department
 what had happened to the certificate since in accordance with the merit
 promotion plan the certificate was supposed to be returned within five
 days.  At that time Guadarrama was advised by Flores that the area of
 consideration for the position had been extended.  The Union was later
 provided with a copy of a letter dated January 5, 1983 from Lieutenant
 Colonel Harvey Manekofsky, the Base Civil Engineer, in which he
 requested the Base Civilian Personnel Office to request authorization
 from the Office of Personnel Management to expand the area of
 consideration (Jt. Exh. No. 2).  /7/ Thereafter, on January 31, 1983,
 Respondent requested additional names from the Office of Personnel
 Management, although Respondent only infrequently follows such a
 practice.  /8/ On February 28, 1983, the Office of Personnel Management
 granted Respondent's Civilian Personnel Office authority to recruit
 applicants from the local commuting area.  The Civilian Personnel Office
 then issued certificate number LJ-063, dated May 4, 1983, containing
 additional names of three applicants (Vasquez, Bowers and Gonzales) from
 the local area.
 
    7.  Subsequently, Guadarrama was told by his supervisor to report to
 Msgt. Ford for an "interview." Ford had become the selecting official
 for the position since he assumed the position of Supervisor in the
 Heavy Equipment Section in the Civilian Engineering Squadron in the
 latter part of January 1983.  (It should be noted, however, that Childs,
 who previously interviewed Guadarrama, was still working in the section,
 under Ford.) When Guadarrama arrived at Ford's office, he was directed
 to a small room in the back of the building where, according to
 Guadarrama, he was told that he had "to take a test." /9/ He was given a
 set of questions, as follows:
 
          1.  Describe in your own words the kinds of work which can be
       done with each of the following:
 
          a.  Dump Truck
 
          b.  Road Grader
 
          c.  Front-End Loader (with clamshell or 4 in 1 bucket)
 
          d.  Front-End Loader
 
          e.  Steel Wheel Roller
 
          f.  Rubber Tire Roller
 
          g.  20-ton Mobile Crane
 
          h.  Backhoe
 
          2.  Describe some of the primary controls and how they are used
       to do the work described above for each of the following:  (same 8
       pieces of equipment listed)
 
          3.  Describe some of the dangers associated with each of the
       following:  (same 8 pieces of equipment listed)
 
          4.  Describe some of the safety equipment used by heavy
       equipment operators.
 
          5. Describe some of the safety practices which should be
       considered when operating each of the following:  (same 8 pieces
       of equipment listed)
 
          6.  Describe some of the basic procedures for operator's
       pre-start checkout and operator's maintenance for each of the
       following:  (same 8 pieces of equipment listed)
 
          7.  List briefly any work that you have done with the
       following:  (same 8 pieces of equipment listed)
 
    By my count, the foregoing adds up to 57 questions.  The
 uncontradicted testimony of Guadarrama in that he took 2 1/2 hours to
 finish the written test, at which time he informed Ford that, in his
 opinion, it was improper to require a written test.  In Guadarrama's
 presence, Ford then called Mr. B. Flores, who works in staffing.  Flores
 confirmed that written tests were not permitted.  Ford apologized but
 stated that, instead, he would give an oral test.  Guadarrama tore up
 his written test responses and threw them in the trash;  they were not
 reviewed by Ford.
 
    8.  Subsequently, on a different day, Ford again "interviewed"
 Guadarrama, this time asking him orally the same questions which were on
 the previous written test.  Ford confirms the foregoing (Tr. 104).  I
 conclude this was an oral test.  According to Guadarrama, Sgt. Ford did
 not indicate on this occasion that he had any problems with Guadarrama's
 responses.  According to Ford, upon completion of the "interview"
 Guadarrama was "definitely" still in competition for selection.  The
 oral test lasted 45 minutes.  Ford then informed Guadarrama that he
 would also be required to demonstrate his practical skill by operating
 one of the pieces of the equipment, but that since all of the equipment
 was in the motor pool he would have to do this at a later time.
 
    9.  Two or three days later, and notwithstanding the fact that there
 still was a limited choice of equipment available, Ford approached
 Guadarrama and gave him the choice of either demonstrating his skill on
 the backhoe or waiting until more equipment was available so that he
 could choose a different piece of equipment.  Guadarrama chose to
 operate the backhoe.  /10/ Guadarrama then proceeded to operate the
 backhoe in accordance with Ford's instructions, demonstrating how he
 would dig a ditch and load the dirt on a dump truck.  /11/ Guadarrama
 testified that Ford did not indicate he had any problems with
 Guadarrama's operation of the backhoe.  This testimony is unrefuted.  In
 response to a leading question on direct examination as to whether
 Guadarrama was still a candidate for selection after showing his
 proficiency on the backhoe, Ford replied:  "Certainly, he did very well.
  Yes." /12/ He then was asked whether he talked to anyone about his
 thoughts at the time.  To this, Ford promptly replied that he talked to
 John Strange, in whose judgment he had very profound faith, and told him
 that unless anything cropped up in the future interviewees he (Ford)
 would be "quite content to hire Hector." Strange said he felt Hector
 would be fine, he had worked with him in the past and could foresee no
 problems.  Strange did not testify.
 
    10.  The Nonselection of Guadarrama
 
    a.  Thereafter, on June 2, 1983, Ford selected Rojelio V. Vasquez for
 the position.  A letter (Jt. Exh. No. 5) was sent from Ford to
 Guadarrama on that date informing him of the selection.  Once Guadarrama
 received the letter he requested that Ford meet with him to discuss the
 reasons for his nonselection.  Ford and Guadarrama then met to discuss
 the matter.  During the discussion Ford stated that he felt Vasquez was
 better qualified for the position.  Guadarrama replied that he did not
 understand how this could be the case since he already worked at the
 base, operated the heavy equipment, and had his government operator's
 license.  However, Ford continued to state that he felt Vasquez was
 better qualified.
 
    b.  The foregoing conversation concerning why Guadarrama was not
 selected then turned to a seemingly different topic raised by Ford.
 Thus, Ford then suggested that Guadarrama should start thinking about
 looking for another job in the "white-collar" area.  Ford said:  "You
 are a pretty good fighter.  You like to get involved.  You should think
 about going into the (sic) GS position." By "fighter," Ford explained--
 according to Guadarrama-- that "I was pretty good at handling cases,
 grievances, and being a Union official." Further, Ford said "I would do
 pretty good in a labor relation (sic) position."
 
    c.  A difference between the testimony of Guadarrama and that of Ford
 is when this conversation took place-- on this occasion or at a
 different time.  I credit Guadarrama's testimony as to when it occurred.
  The General Counsel argues that, because this conversation occurred
 when Guadarrama was inquiring why he was not selected, I should infer
 that Guadarrama's Union activities were a motivating factor in the
 decision not to select him.  I agree with the General Counsel.  From
 Guadarrama's own testimony it is quite clear that Ford initially was
 careful to merely respond that Vasquez was "better qualified" without
 answering Guadarrama's inquiry as to why he (Guadarrama) was not "better
 qualified." Faced with Guadarrama's persistent questioning, Ford then
 brought up the subject of Guadarrama seeking a different career.  In so
 doing, Ford indicated a state of mind;  i.e. his preoccupation with
 Guadarrama's representational duties for the Union.
 
    d.  Indeed, the mere fact that Ford brought up the subject of
 Guadarrama's union activity-- even at a different time-- shows knowledge
 of Guadarrama's activities, abilities and interests to a much larger
 extent than admitted in his testimony.  Whenever Guadarrama had to
 represent someone, he had to obtain permission from his supervisor whose
 desk is located across from Ford's.  Obviously, Ford had to be aware of
 the time spent by Guadarrama in such activity.
 
    11.  Richard Cary is a laborer.  In the past, he worked with
 Guadarrama.  He testified with respect to two incidents, each of which
 the General Counsel relies upon to show that Respondent's decision not
 to promote Guadarrama was motivated by Guadarrama's activities on behalf
 of the Union.
 
    a.  The first incident is particularly critical to the General
 Counsel's case because it involves a conversation overhead by Cary in
 which he relates what the selecting official, MSgt. Ford, is alleged to
 have said.  In its brief, Respondent attempts at great length to attack
 Cary's credibility.  /13/ I am satisfied, however, that Cary was telling
 the truth when-- a year after the events in question, and perhaps six
 months after giving an affidavit /14/ during the investigation of the
 charge-- he was able to recall (1) what Sgt. Ford said to Sgt. Childs,
 (2) where the conversation took place, and (3) approximately when it
 occurred in relation to the selection decision.  /15/ Based upon my
 observation of Cary and his demeanor at the hearing, plus my careful
 review of his testimony in the light of Respondent's detailed brief, I
 credit Cary's testimony and find, as follows:  On or about June 1, 1983
 Cary entered a building which contains, inter alia, a bathroom, a break
 room with a picnic table, and an office with desks of Sergeants Ford,
 Childs and Salinas.  After washing his hands, Cary stopped at the candy
 machine where he bought some candy.  The machine is located adjacent to
 the entrance occupied by the Sergeants.  As he stood in the hallway,
 Cary could see Ford, who was facing towards the desk of Salinas.  Cary
 heard two voices:  Ford's and Childs'.  Ford was speaking to Childs.
 According to Cary:
 
          And at that particular time they had said something in the
       effect of Hector couldn't be there or couldn't come in-- and it
       says because of his Union activities he was never around and they
       didn't need somebody who was not going to be working there and not
       show up for work.  They need somebody who would always be there.
       And his Union business was always conflicting with his job.
 
    The "they" to whom Cary was referring apparently was Ford, because
 Cary consistently testified that he couldn't understand anything said by
 Childs who was sitting around the corner out of his direct sight.  Cary
 admits that he came into the middle of a conversation, neither hearing
 anything before or after the portion dealing with Guadarrama.  /16/ On
 cross-examination Cary enlarged on his direct testimony, specifically
 recalling that "Sergeant Ford had said to the effect:  No, he would not
 be good;  Hector can't do it because he is always in Union business;  he
 is never there . . . .  I heard him (Ford) say Hector would not be
 qualified because his Union business got in the way." (Tr. 74, 75).  He
 didn't hear Childs' reply, and after this "the phone rang or something,
 because then they started talking about work, and then everybody started
 showing in (sic) and we all left for lunch." To the extent Ford denies
 having this specific conversation, I do not credit him.
 
    b.  The second incident occurred about two weeks later.  On
 cross-examination it was brought out that Cary asked quite a few people
 why Guadarrama had not been promoted.  On this particular occasion he
 confronted Sgt. Childs in the break room at lunchtime, in the presence
 of Airman Kurt Tustin and others.  Cary testified:  "And I had just
 asked him (Childs) point out blank, you know, what was the deal.  How
 come Hector didn't get hired?  Why didn't he get the job?  And they told
 me straightforward it was because his Union stuff always got in the way
 and he was never going to be there and they weren't going to pay anybody
 who wouldn't show up for work." On cross-examination Cary was asked
 specifically what words were used by Childs.  Cary replied:  ". . . it
 would be a shame, it would be a waste;  because he is never around." I
 infer from this that Childs was referring to Guadarrama's absences
 conducting union business.  According to Cary, Tustin added "something
 to the effect of:  Yeah;  well, he is always doing Union stuff and he is
 never around.  Why are we going to pay somebody who is not going to be
 here.  We have got work to do."
 
    c.  Childs did not testify.  Tustin testified that he recalled the
 incident and recalled Cary asking why Guadarrama didn't get a job.  His
 version, however, is that Childs "didn't say nothing" and all he
 (Tustin) did was agree with a statement by Airman Ira Keith Steward that
 Guadarrama "is never around anyhow." Steward testified that he didn't
 recall this specific incident but admits having commented-- on some
 occasion-- that he hardly ever saw Guadarrama round.  Respondent
 contends the more probable version is that related by Tustin;  i.e.
 Childs said nothing and any remarks by Steward and Tustin omitted
 reference to "union activities." What I regard as most significant about
 Tustin's testimony is the fact there actually was an occasion when Cary
 inquired why Guadarrama had not been selected for promotion and that it
 was in the break room.  Thus, to this extent, Cary's testimony is
 corroborated except to what was said and by whom.  Childs, an admitted
 supervisor and/or management official, albeit not the selecting
 official, worked under Ford and is the one who originally interviewed
 Guadarrama before a decision was made to expand the area of
 consideration.  (Ford conceded that he "very probably" discussed his
 selection with Childs but insisted he didn't recall any specific
 conversation.) Childs did not testify and from this record I cannot
 conclude he would have remained silent during Cary's questioning, as
 suggested by Tustin.  (See Tr. 56, lines 2-6.)
 
    d.  Based upon my observation of the demeanor of these witnesses, and
 my review of their testimony, I credit the version given by Cary on
 cross-examination.  In other words, Childs' remarks were limited to
 saying "it would be a shame, it would be a waste, because he is never
 around." I find that "never around," in this case, is a euphemism
 referring to Guadarrama's union activities.  The more direct and
 specific reference to union activities was made by Tustin, rather than
 Childs.  While I do not credit Tustin's version where in conflict with
 Cary, I note his admission that he used the term "never around" in
 referring to Guadarrama.  Of course, Tustin is not an agent of
 Respondent and may only have been voicing his personal opinion, even
 though made in the presence of Childs, who did not disavow it.
 
    12.  Requirements For the WG-10 Position
 
    Joint Exhibit No. 11 is a position description for Engineering
 Equipment Operator.  It lists the following equipment:  (a) graders, (b)
 bulldozers, (c) front-end loaders, (d) small industrial tractors, (e)
 20-ton truck mounted crane, (f) roller, (g) wheel mounted trenching
 machine, (h) Wayne vacuum sweeper, (i) farm tractors with backhoe, and
 (j) 5 to 10-ton tractor truck pulling 25 to 40-foot trailers.  The
 recruitment bulletin (Jt. Exh. No. 14) with an opening date of March 16,
 1983 and a closing date of March 29, 1983 listed (a), (b), (c), (d), (e)
 and (h) above.  Although the backhoe was not specifically mentioned, it
 appears that this is an attachment used on a farm tractor (para. 7 of
 Jt. Exh. No. 11).  A roller is pulled by a tractor.  The bulletin
 specified that competitors would be rated on "the extent and quality of
 their experience and training based upon their statements and any
 additional information." As previously discussed.  Guadarrama and 3
 others were certified as "fully qualified" for the WG-10 position.  In
 addition, as noted previously, Guadarrama also was rated "fully
 qualified" for a WG-11 position.
 
    13.  Guadarrama's Qualifications
 
    a.  Guadarrama testified, without contradiction, that he was trained
 by George Tilson, a WG-11 Crane Operator, on the following:  sweeper,
 backhoe, front-loader and dump truck.  I note that Tilson's name is
 listed as a "qualifying official" on Guadarrama's U.S. Government Motor
 Vehicle Operator's Identification card.  This card also lists the
 following equipment he is qualified to operate:  backhoe, 1/2-tone cargo
 truck, tractor, forklift, dump truck, and front-end loader.  The other
 equipment listed is not legible.  Guadarrama's current job requires this
 license.  The only pieces of equipment he is not licensed to operate are
 the crane, grader and one of the loaders.
 
    b.  Joint Exhibit No. 16 is a copy of Guadarrama's form 171 Personal
 Qualifications Statement.  It shows that he was born in 1949 and
 graduated from high school in 1969.  (Not shown on this form is the fact
 that Guadarrama has also taken college courses, but to what extent the
 record is not clear.) From May 1966 to July 1968 he performed seasonal
 work;  he drove trucks and combines while harvesting wheat.  From May to
 August 1969, he was a steelworker.  From August 1969 to August 1971, he
 was a combat medic and drove an ambulance in the U.S. Army.  This form
 171 was signed and dated August 24, 1971.  He testified that he has been
 employed by Respondent "almost 15 years", the last 8 years a Tractor
 Operator.  His duties include mowing the airfield, base grounds and gold
 course with a variety of mowers.  He uses self-propelled equipment, such
 as powered edgers, weedeaters and pushmowers.  He sets out pipes,
 connects and disconnects sprinklers and hoses, and performs manual tasks
 such as trimming trees and shrubs.
 
    c.  A continuation sheet attached to his form 171, and dated February
 17, 1976, discloses that during the months of September, October and
 November of 1967, he worked every weekend operating the backhoe,
 Bulldozer and frontloader in Mexico.  He did likewise for the entire
 month of December 1967 and again for two weeks in January 1969.  He
 apparently was given credit for such experience, particularly in view of
 the fact that his name appeared as "fully qualified" on both the WG-11
 and WG-10 Merit Promotion Certificates.
 
    d.  Guadarrama testified that he has an "emergency essential"
 position whereby civilian employees like himself operate heavy equipment
 when military personnel are away on training exercises.  This occurs 2
 or 3 times per year.  About 80 to 125 employees have been given this
 designation.
 
    e.  Guadarrama also testified that 3 or 4 times a month he worked
 with the front-loader, backhoe, water truck, dump truck and tractor
 trailer.  He has done this for the past 5 or 6 years.  To operate these
 types of equipment requires a license and it is necessary to obtain
 permission from MSgt. Ford, his predecessor SSgt. Childs, or someone in
 that office.  Although Ford denies any specific knowledge of
 Guadarrama's use of such equipment, I do not believe him.  When I
 consider how thoroughly and how methodically Ford checked with the
 personnel office and read manuals to discover what he could and could
 not do in carrying out his responsibilities as a selecting official, I
 believe it would be out of character for him not to become fully
 acquainted with Guadarrama's reputation and his qualifications to
 operate heavy equipment.  One source of information was SSgt. Childs who
 was assisting Ford during this entire period.  Indeed, when Ford was
 first informed that a decision was made to go outside the agency for
 additional applicants, the logical first question for Ford was to
 inquire why Guadarrama had not been selected.  I simply have to infer
 that Ford was briefed by Childs as to Guadarrama's qualifications.  /17/
 But even without this inference, the fact remains that Guadarrama was
 given an oral test concerning all the applicable equipment.  As a result
 thereof, Ford was even more fully informed about Guadarrama's
 qualifications, and can hardly assert-- as Respondent does-- that Ford
 was relying solely on the form 171 application.  Finally, Guadarrama's
 supervisor was located in close proximity to Ford, so Ford had this
 additional source of information.  Under all the circumstances, I infer
 and conclude that Ford knew of Guadarrama's experience with heavy
 equipment before he made his decision to select Vasquez.
 
    14.  Qualifications of Vasquez
 
    a.  Ford testified that all four candidates were "probably competent
 to take the job." In fact he claims he had a real dilemma and he told
 personnel any of the four people" could have filled the position," and
 asked whether there were any other considerations he should be thinking
 about in making the selection.  He was told it was his decision to make,
 but he should be prepared to justify it, if ever called to explain.
 Ford claims he made the decision to select Vasquez because (1) he had
 been to a military equipment school, (2) he had worked in the military
 heavy equipment field in the Marine Corps, and (3) he was currently
 working in a job which he operated heavy equipment on a daily basis.
 Respondent argues that I should accept Ford's explanation and conclude
 that Respondent has sustained its burden of establishing that even in
 the absence of any unlawful motive, Ford would not have selected
 Guadarrama anyway because Vasquez was a "natural choice."
 
    b.  Although currently employed by Respondent, Vasquez was not called
 as a witness.  Accordingly, our knowledge of his qualifications is
 somewhat limited.  Ford did not relate what information he learned from
 his interview.  However, we do know that the conversation with someone
 in personnel occurred after the interview and at that stage all four
 candidates were competent and could have filled the job.  (Whatever
 reluctance I may have to accept this evidence because it came from Ford,
 the fact remains that no contrary evidence was adduced by the General
 Counsel.) Ford's testimony as to Vasquez is conclusionary and does not
 provide any specific information in addition to what appears in the
 SF-171 of Vasquez.
 
    c.  The SF-171 reveals that Vasquez was born in 1955, completed 10th
 grade, and served in the U.S. Marine Corps from June 3, 1974 to March
 14, 1977.  After completing basic training at Camp Pendleton, California
 from June to August, he was assigned to Camp Le Jeune, NC, where he
 attended a Heavy Equipment school for what appears to be about three
 months.  Here he learned to operate the following:  forklifts, jeeps,
 tractor trailers, tank trucks, semi-trailers, cranes, sweepers,
 bulldozers, graders and loaders.  From November 1974 to November 1975,
 he was classified as an Engineer Equipment Operator at Camp Pendleton
 where he states that he operated bulldozers, graders, front-end loaders,
 forklifts and cranes.  Precisely how much of his time was actually spent
 in operating each piece of equipment is not disclosed.  His next
 assignment was in Okinawa from November 1975 to March 1977.  His job
 title was unchanged.  He states he drove jeeps, tractor trailers, tank
 trucks, semi-trailers, cranes, sweepers, bulldozers, graders and
 front-end loaders.  From the date of his discharge in March 1977 until
 April 1979, Vasquez was unemployed.  He then obtained a job as a Truck
 Driver with Ingram Readymix in Del Rio, Texas.  (Laughlin AFB is located
 near Del Rio.) His beginning salary was $3.50 per hour;  his salary when
 he completed the SF-171 on March 28, 1983 was $5.00 per hour.  His
 duties were to operate a concrete mixer, tractor and loader.  The WG-10
 position he was applying for paid $8.64 per hour plus, of course, all
 the benefits accorded federal employees.
 
    d.  Nowhere in the SF-171 is the backhoe listed.  There is testimony
 from another witness, also named Rojelio Vasquez, that after Vasquez
 (the selectee) reported to work he had a problem on one occasion in
 August or September operating the backhoe to dig up a gas valve so that
 the plumbers could disconnect a gas line.  At one point, selectee
 Vasquez asked the plumbers to bear with him since it was only the second
 time he had operated this type of equipment.  He then commented further
 that "I guess I learn here." The witness, on cross-examination,
 disclosed that Guadarrama had represented him in a case resulting in his
 receiving $15,000.  /18/
 
                     Discussion and Conclusions of Law
 
    A. Applicable Statutory Provisions
 
    Section 7116(a)(1) and (2) of the Statute provides that it shall be
 an unfair labor practice for an agency to (1) interfere with, restrain,
 or coerce any employee in the exercise by the employee of any right
 under this chapter, and (2) to encourage or discourage membership in
 labor organization by discrimination in connection with hiring, tenure,
 promotion, or other conditions of employment.
 
    B.  Applicable Case Law
 
    In Internal Revenue Service, Washington, D.C., 6 FLRA No. 23, 6 FLRA
 96 (1984), the Authority adopted the standard established in Mt. Healthy
 City School District Board of Education v. Doyle, 429 U.S. 274 (1977)
 for the determination of a section 7116(a)(1) and (2) violation of the
 Statute.  /19/ There, the Authority held that the burden is on the
 General Counsel to make a prima facie showing that the employee had
 engaged in protected activity and that this conduct was a motivating
 factor in agency management's decision not to promote.  Once this is
 established, the Authority held that the agency must show by a
 preponderance of the evidence that it would have reached the same
 decision as to the promotion even in the absence of the protected
 conduct.  The Authority has subsequently found violations of section
 7116(a)(1) and (2) of the Statute and of independent violations of
 section 7116(a)(1) of the Statute in cases where the Activity
 discriminated against employees in various ways because of their union
 activities.  /20/
 
    C. Respondent's Defense
 
    Respondent denies that Guadarrama's protected activity was a
 motivating factor in his nonselection.  Even assuming it was a factor,
 Respondent asserts as an affirmative defense that Vasquez would have
 been selected in any event because he was, as Ford testified, the "best
 qualified" of the four candidates.  Stated differently, Respondent is
 contending that Guadarrama would not have been selected, even in the
 absence of any unlawful motivation.  For the reasons more fully
 discussed below, Respondent's defense is rejected.
 
    D.  Whether Guadarrama's Union Activity Was A Motivating Factor In
 Ford's Decision Not To Select Him For Promotion
 
    Respondent concedes that Guadarrama has engaged in protected union
 activity and that the selecting official (Ford) was aware of it.  The
 issue is whether protected union activity was a motivating factor in the
 decision to select Vasquez instead of Guadarrama as denied by Respondent
 or the motivating factor as contended by the General Counsel.
 
    1.  In paragraph 10 of my "Findings of Fact," I discussed the meeting
 at which Guadarrama asked Ford why he was not selected.  Based upon
 Guadarrama's own testimony, the topic of conversation changed from (1)
 his nonselection to (2) his qualifications for a GS position.  In my
 opinion it is significant that Ford brought up the subject of
 Guadarrama's qualifications for a completely different type of work at a
 time when Guadarrama was having difficulty understanding his
 nonselection.  There's a world of difference between Guadarrama's
 current job of driving a tractor pulling a mowing machine and Ford's
 suggestion that he seek a completely different line of work;  i.e. a
 white-collar job in which Guadarrama could utilize his abilities as a
 "fighter" and good union representative.  To me, Ford's initiation of
 this subject indicates his state of mind at that time.  Thus, Ford's
 attention was focused on Guadarrama's Union activities rather than upon
 his potential as a Engineering Equipment Operator.  According to Ford's
 own testimony, Guadarrama did well on the oral test and the
 demonstration of the backhoe, and was one of four "competent"
 candidates, any one of whom could have filled the position (Tr. 107).
 Assuming this all to be true, it hardly makes sense to be encouraging
 Guadarrama to be changing jobs, rather than encouraging him to be
 patient and await the next opening for a heavy equipment operator.
 Besides, review of Guadarrama's form 171 does not provide any other
 basis for concluding that Guadarrama's experience could successfully
 qualify him for a "white-collar" job.  Therefore, Ford's remarks were
 based upon some other knowledge.  I conclude that Ford's remarks to
 Guadarrama, in the context in which they were made, constituted a clear
 reference to his union activities.
 
    2.  In paragraph 11 of my "Findings of Fact," I discussed the two
 incidents about which Richard Cary testified.  The first incident
 involved Ford's remarks to Childs on or about June 1.  The second
 incident occurred two weeks later when Cary confronted Childs to the
 presence of Tustin and others.  Ford specifically referred to
 Guadarrama's union activities and Childs used the phrase "never around,"
 a euphemism for union activities.
 
    3.  The evidence also establishes that Guadarrama was subjected to
 different standards from the other applicants.  He is the only one who
 was required to take a written test.  It is only because he knew his
 rights and complained about this requirement that Ford had to check with
 Personnel only to discover that Guadarrama was correct.  What was Ford's
 reaction after being advised he couldn't require a written test?  He
 concluded there was no impediment to an oral test.  Accordingly, he
 proceeded to do indirectly what he couldn't do directly-- masking his
 true intentions by calling the test an "interview".  Was Guadarrama the
 only candidate required to be tested orally?  We really don't know
 because none of the other candidates testified and the only witness on
 this subject was Ford.  My overall impression of witness Ford is that he
 was biased against Guadarrama because of his union activities and his
 entire testimony was contrived to counter a strong case by the General
 Counsel of Ford's disparate treatment of Guadarrama.  Although Ford
 testified (Tr. 104) that he gave the same oral test to the other
 candidates, he did not disclose the circumstances involved, such as
 where and when the so-called oral interview took place, its duration or
 its specific results.  In other words, his testimony was not for the
 purpose of explaining what he learned about the candidates in terms of
 their qualifications, but, rather, for the purpose of rebutting any
 accusation of disparate treatment.
 
    4.  The evidence also establishes that Guadarrama was the only
 candidate required to give a demonstration of his proficiency on a piece
 of heavy equipment.  Although Childs informed Ford that Guadarrama had
 previously complained or grieved about such a requirement (Tr. 100),
 Ford felt that he had not been similarly restricted in the past so he
 checked with Flores in Personnel.  Ford said he "spent some time
 researching the Manual and I found a line in there which said that we
 could offer people the opportunity to demonstrate their proficiency on
 the equipment." Of course, in personnel jargon there is supposed to be a
 difference between (1) being given an opportunity to demonstrate and (2)
 being required to demonstrate-- especially where an applicant has
 already been certified as fully qualified based upon Personnel's
 evaluation of the applicant's experience.  As previously noted in
 footnote 10, I am of the opinion that the manner in which Ford presented
 this "opportunity" twice to Guadarrama really made it appear like a
 "requirement," especially since it was Guadarrama who initially objected
 to Childs about such demonstrations.  In effect, Ford was saying to
 Guadarrama that his objections were lacking in merit because he (Ford)
 had checked with Personnel and found authority for what he wanted to do.
  This was a not too subtle way of letting Guadarrama know who was the
 boss.
 
    Forced to explain why Guadarrama was the only candidate required to
 demonstrate his proficiency on heavy equipment, the best that Ford could
 do was to insist he wanted to give the candidates a "choice" of
 equipment which he couldn't do because a lot of the equipment was in the
 shop for repairs.  Although the backhoe was available, he wanted to
 offer them a choice.  This weak explanation must, of course, be
 rejected.  It doesn't make sense.  All he had to do was treat the other
 three candidates the same way he treated Guadarrama, namely by informing
 them of his desire for a demonstration and the fact that there was not a
 choice of equipment available, but there was a choice of whether they
 wanted to operate-- or not operate-- the backhoe.  As set forth in
 footnote 11 supra, Ford's reasons for desiring a proficiency
 demonstration are quite reasonable and believable.  "What I learned by
 seeing these on a piece of equipment of any kind is a combination of
 hand, foot, and eye coordination that one must have to be able to learn.
  Some people have it;  some people don't." In view of the importance
 Ford himself places on the demonstration of proficiency, I find it
 simply incredible that he could proceed to make his selection without
 seeing for himself whether the other candidates could satisfactorily
 demonstrate they had the proper combination of hand, foot and eye
 coordination.  Yet, without obtaining this valuable information, Ford
 testified that all the candidates were competent and qualified.  His
 testimony is suspect;  his explanation is not believable;  and I
 conclude that the demonstration of proficiency was just another step in
 the obstacle course that faced Guadarrama and not the others.  The
 written test, the oral test, and the proficiency demonstration were all
 designed to help Guadarrama eliminate himself from the competition by
 performing poorly.  Apparently this strategy did not work.
 
    E.  Respondent's Affirmative Defense:  Guadarrama Would Not Have Been
 Selected Because Vasquez Was Better Qualified
 
    I have concluded that Guadarrama's protected union activity was
 considered by Ford in making his selection decision.  This constitutes
 an independent violation of section 7116(a)(1) regardless of what
 disposition is reached with respect to the alleged violation of section
 7116(a)(2).  /21/ The next issue to be resolved is whether Respondent
 has proven by a preponderance of the evidence that Vasquez was better
 qualified and therefore Guadarrama would not have been selected anyway.
 
    1.  The objective evidence offered by Respondent is limited to Joint
 Exhibit No. 17, Vasquez' SF-171.  See paragraph 14(c) of my "Findings of
 Fact," supra.  Ford said he was impressed with the fact that Vasquez
 attended a heavy equipment school while in the Marine Corps and had
 actually worked in the military heavy equipment field in the Marine
 Corps.  While I agree that Vasquez had training and experience in the
 military service, the fact of the matter is that Guadarrama also had
 training and experience which essentially was obtained more recently and
 was on equipment at Laughlin Air Force Base.  (In the light of the
 remainder of Ford's testimony on the subject of experience, the mere
 fact that Vasquez received "military" training is not significant.)
 Moreover, Vasquez was discharged from the service in March 1977 so any
 experience he had on the more difficult pieces of heavy equipment was
 six years in the past.  Furthermore, the SF-171 for Vasquez does not
 indicate how much of his time was spent on each piece of equipment.
 It's one thing to merely list a variety of machines but it's more
 informative and persuasive to disclose which machines were operated on a
 regular basis and which on a sporadic basis.  The record does not
 indicate whether Personnel verified the information on the SF-171 or
 whether it rated Vasquez fully qualified merely based upon his own
 assertions.  Vasquez did not testify and Ford did not relate what, if
 anything, he learned from the oral test.  (The burden of producing such
 evidence is upon Respondent.) In contrast, MSgt. Moore told Guadarrama
 he stood a good chance of getting the WG-10 job if he didn't get the
 WG-11 Crane Operator position.  Guadarrama had been trained on various
 pieces of equipment by Tilson, as reflected on his license.  He also
 occupied an emergency essential position and was familiar with the
 equipment at the Base.
 
    Ford's asserted reliance on the "military" experience of Vasquez is
 inconsistent with Ford's testimony that each piece of equipment has its
 own peculiarities and characteristics and, for this reason, he expected
 to train everybody on each piece of equipment.  /22/ Accordingly, it
 would seem that experience six years in the past is as much ancient
 history as that of Guadarrama in Mexico before 1970.  According to Ford
 he could teach somebody to operate equipment, but what he needed was
 someone who possesses the right combination of hand, foot and eye
 coordination.  However, this is not information one receives from
 reviewing a form 171.  Even more significant, however, is the fact that
 Vasquez was unemployed for two years after his discharge.  We don't know
 how competent Vasquez was in the service, and since he did not testify,
 there is no explanation in this record why he was unable to obtain a
 civilian job where he could utilize his experience and maintain his
 skills.
 
    Ford also felt that the current experience of Vasquez was a factor in
 his selection, but the job being sought by Vasquez did not require
 operating a cement mixer, and both Vasquez and Guadarrama could operate
 a tractor and loader.  Besides, the record does not indicate how much of
 Vasquez' time was spent operating each piece of equipment in his
 civilian job.  His job title was Truck Driver and his low salary of
 $5.00 per hour could be reflective of his skills, his level of
 responsibilities, low area wage rates, or some combination of these.  In
 any event, his current experience is not that impressive and does not
 persuade me that this is sufficient to tip the scales in favor of an
 applicant from outside Respondent's own organization.
 
    Based upon my review of the entire record, my consideration of the
 excellent briefs submitted by both counsel, and my comparison of the
 qualifications of both Guadarrama and Vasquez, it is my conclusion that
 Respondent has not sustained its burden of proving by a preponderance of
 the evidence that Vasquez was the best qualified of four candidates and
 would have been selected over Guadarrama.  Respondent's affirmative
 defense is therefore rejected.
 
    F. Direct Causal Relationship Between Respondent's Unlawful
 Motivation and Guadarrama's Nonselection
 
    Based upon my review of the entire record in this proceeding I
 conclude (1) that there was a direct causal relationship between
 Respondent's unlawful consideration of Guadarrama's protected union
 activity and his nonselection for promotion, and (2) that but for
 Respondent's consideration of Guadarrama's protected union activity, he
 would definitely have been selected for promotion to the position of
 WG-10 Heavy Equipment Operator.  In particular, the following factors
 are noteworthy:
 
    1.  Personnel rated Guadarrama as fully qualified for the higher
 graded and more difficult position of WG-11 Crane Operator.
 Understandably, the person selected (John Strange) was already at the
 WG-10 level.  However, MSgt. Moore (a senior to Ford and Childs) told
 Guadarrama he stood a pretty good chance of being selected for the WG-10
 position when Strange vacated that position.
 
    2.  Guadarrama's name was the only one on the certificate for the
 WG-10 position.  He was rated fully qualified.  He was interviewed by
 Childs, the same person who later told Cary:  "it would be a shame, it
 would be a waste, because he is never around." As a result, permission
 was requested to post the vacancy outside the government.
 
    3.  Guadarrama's length of service with Respondent and his duties as
 Vice President make him particularly knowledgeable about Respondent's
 promotion selection procedures.  He testified without contradiction that
 Respondent only infrequently expanded the area of consideration to
 include nongovernmental employees.  Moreover, he has personally been on
 or about 11 certificates and on none of these did Respondent expand the
 area of consideration.
 
    4.  Guadarrama was the only applicant required to submit to a written
 test and it was only because he correctly questioned the validity of
 this requirement that the test was not reviewed by Ford.  Although
 Guadarrama won the battle, he lost the war, as it is undisputed that
 Ford then required Guadarrama to respond orally to the same set of
 questions used in the invalid written test.  Thus, in the guise of an
 interview, Ford accomplished indirectly what he was prohibited from
 doing directly.
 
    5.  The evidence does not establish that the other three candidates
 were required to submit to an oral test.  The burden was on Respondent
 to submit such proof.  None of the other candidates were called as
 witnesses.  Apart from Ford's obvious bias and lack of credibility, his
 testimony only reflects in conclusionary terms that he gave the tests to
 the other candidates, but he made no effort to indicate the
 circumstances under which the oral tests were given, their duration, or
 their results in specific terms.  Accordingly, I do not rely on his
 testimony.
 
    6.  Ford admitted that upon completion of the oral test, Guadarrama
 was definitely still in competition for selection.
 
    7.  Guadarrama was the only applicant required to demonstrate his
 proficiency on a piece of equipment.  Ford required this of Guadarrama
 in spite of the fact that Guadarrama had previously objected to Childs
 about the legality of such requirement.  Ford went out of his way to
 find what he regarded as a loophole in the regulations permitting a
 selecting official to give applicants "an opportunity" to demonstrate
 their proficiency.  As previously concluded, however, Ford's method of
 presenting the matter to Guadarrama amounted to the imposition of a
 requirement-- not the affording of an opportunity-- to demonstrate his
 proficiency.  At that, however, Ford still had to admit that Guadarrama
 performed well and was still a candidate for promotion.
 
    8.  Ford told John Strange that unless anything cropped up in the
 future interviewees he (Ford) would be "quite content to hire Hector."
 Strange did not testify but is alleged to have replied that he felt
 Hector would be fine, that he had worked well with him in the past, and
 that he could foresee no problems.  Coming from the very person whose
 WG-10 position was being sought by Guadarrama, Strange's praiseworthy
 comments are particularly noteworthy.
 
    9.  What, if anything, "cropped up" in the interviews with the other
 three candidates?  Apparently nothing, because it was after these
 interviews that Ford went to Personnel and to MSgt. Moore to inquire
 whether there were any "other considerations" which he could utilize to
 resolve what he termed an "unusual dilemma" of having four competent
 candidates to choose among, any one of whom could have performed the
 job.  In other words, at that particular point in the selection
 process-- after all tests and interviews were completed, and all
 applications reviewed-- Ford was telling Personnel and MSgt. Ford that
 the four applicants were as alike as peas in a pod, that he had not yet
 made a selection, and that he was looking for some other consideration
 to rely upon.  Since he had not yet made a decision, it would thus
 appear that nothing had "cropped up" to defeat any claim Guadarrama
 might feel he had by virtue of his status as an employee of Respondent
 familiar with the equipment and the personnel with whom and for whom he
 would be working.
 
    10.  Why, then, was Guadarrama not selected by Ford?  Why was he
 passed over in favor of someone from outside the agency?  What were the
 other considerations which finally were relied upon by Ford to break the
 tie and tip the scales in favor of someone other than Guadarrama?  The
 answer, I believe, comes from the lips of Ford himself in the
 conversation with Childs overheard right about the time that the
 decision was being made.  Ford said:  "No, he would not be good;  Hector
 can't do it because he is always in Union business;  he is never there .
 . . .  I heard him (Ford) say Hector would not be qualified because his
 Union business got in the way" (Tr. 74, 75).  See also Tr. 65.  Upset by
 what he heard, and after learning that Guadarrama really was not
 selected (by now Vasquez had reported for duty), Cary began to ask
 questions.  He confronted Childs in the break room and specifically
 asked why Hector had not been promoted.  In the presence of Childs, an
 agent of Respondent, Airman Tustin said:  "Yeah, well, he is always
 doing Union stuff and he is never around.  Why are we going to pay
 somebody who is not going to be here?  We have work to do." Childs did
 not disassociate himself from Tustin's remarks and responded in the same
 vein saying:  "it would be a shame;  it would be a waste;  because he is
 never around" (Tr. 80).  In this context, Childs' statement was a clear
 reference to Guadarrama's union activities.  Further, since Childs was
 the one to whom Ford was speaking two weeks earlier in the conversation
 overhead by Cary, Childs' remarks merely confirmed the basis for Ford's
 decision.  Significantly, Childs did not respond to Cary by saying that
 Vasquez was better qualified or that Guadarrama was lesser qualified.
 It is also significant that someone outside the supervisory level;  i.e.
 rank-and-file Airman Tustin, knew the basis for Ford's decision.
 
    11.  On the basis of the foregoing, and on the entire record, I
 conclude that Guadarrama was a victim of disparate treatment.  He was
 not selected because of his protected union activity and this was not
 only a reason for his nonselection, but it was the reason for his
 nonselection.  Ford's discredited account of the reasons why he
 ultimately selected were pretextual;  thus, this is not a dual motive
 case.  In summary, I find and conclude that Respondent violated section
 7116(a)(2) by its nonselection of Guadarrama because of his having
 engaged in protected union activities. Since such discriminatory conduct
 tends to interfere, restrain and coerce employees-- like guadarrama and
 Cary-- in the exercise of their statutory rights, such conduct also
 constitutes a derivative violation of section 7116(a)(1).
 
                                  Remedy
 
    Section 7106 of the Statute enumerates certain inherent rights of
 management which include, inter alia, the right to layoff, suspend, and
 take other disciplinary actions against employees, as well as the right
 to select employees for promotion.  However, such rights must be
 exercised "in accordance with applicable laws." Whenever an agency
 discriminates against an employee because of his or her protected union
 activity, said agency thereby fails to exercise its management rights in
 accordance with applicable law;  i.e. section 7116 of the Federal
 Service Labor-Management Relations Statute.  Therefore, it follows that
 the Authority, in fashioning an appropriate remedial order designed to
 remedy the statutory violation, often finds it necessary to order an
 agency (1) to cease and desist its unlawful conduct, and (2) to restore
 the status quo which would have existed, but for the unlawful conduct.
 This is what must be done here.
 
    Where an agency's disciplinary action was found to be motivated
 solely by anti-union considerations and taken as a reprisal for union
 activity, the Authority has directed the agency to remove and expunge
 from the files any record of counseling concerning the incident in
 question.  /23/ In the case of an unlawful exercise of the right to
 discharge an employee, the Authority has ordered the employee's
 reinstatement with backpay.  /24/ Where an employee has been suspended
 for unlawful reasons, the suspension action has been revoked and
 expunged from the employee's personnel file, and backpay ordered.  /25/
 Where a promotion selection process has not complied with the collective
 bargaining contract and applicable regulations, the Authority has
 ordered the selection process to be rerun in order to properly identify
 any employees affected by an improper failure to promote and, once
 identified, the Authority's order directs their promotion and
 reimbursement for backpay.  /26/ In arbitration decisions the Authority
 has stated that management's retained right to select or not select may
 be abridged if a direct connection is found between improper agency
 action and the agency's failure to select a specific employee for
 promotion.  /27/
 
    I have previously found in this case (see Findings, section F, supra)
 that a direct causal relationship exists between Respondent's unlawful
 consideration of Guadarrama's protected union activity and Respondent's
 failure to select him for promotion.  I further have found that but for
 Respondent's statutory violations, Respondent itself would definitely
 have selected Hector Guadarrama for promotion to the position of WG-10
 Heavy Equipment Operator.  Accordingly, I recommend that Respondent be
 ordered to cease and desist its unfair labor practices, vacate (if
 necessary) the WG-10 Heavy Equipment Operator position, retroactively
 promote Hector Guadarrama to that position, reimburse him for the loss
 of monies occasioned by the improper and unlawful failure to promote him
 on June 2, 1983, and post an appropriate notice to employees.
 Accordingly, I recommend the Authority adopt the following:
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Rules and Regulations of the
 Federal Labor Relations Authority, and section 7118 of the Statute, the
 Authority hereby orders that the United States Department of Defense,
 Department of the Air Force, Headquarters 47th Flying Training Wing
 (ATC), Laughlin Air Force Base, Texas, shall:
 
    1.  Cease and desist from:
 
          (a) Considering the protected union activities of employees in
       making determinations whether employees shall be promoted.
 
          (b) Refusing to promote Hector Guadarrama or any other employee
       because of their union activity.
 
          (c) Interfering with, restraining, and coercing Hector
       Guadarrama or any other employee in the exercise of their rights
       assured by the Federal Service Labor-Management Relations Statute.
 
          (d) In any like or related manner, interfering with,
       restraining, or coercing its employees in the exercise of rights
       assured by the Federal Service Labor-Management Relations Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute:
 
          (a) Vacate, if necessary, the position of Engineering Equipment
       Operator, WG-5716-10, and retroactively promote Hector Guadarrama
       to such position;  reimburse him for the loss of pay he suffered
       by reason of the failure to promote him on June 2, 1983, due to
       his protected union activities;  and restore to him any right or
       privilege he may have lost by such action.
 
          (b) Post, at United States Department of Defense, Department of
       the Air Force, Headquarters 47th Flying Training Wing (ATC),
       Laughlin Air Force Base, Texas, copies of the attached Notice
       marked "Appendix" on forms to be furnished by the Federal Labor
       Relations Authority.  Upon receipt of such forms, they shall be
       signed by the Base Commander and shall be posted and maintained by
       him for 60 consecutive days thereafter, in conspicuous places,
       including all bulletin boards and other places where notices to
       employees are customarily posted.  The Base Commander shall take
       reasonable steps to insure that such notices are not altered,
       defaced, or covered by any other material.
 
          (c) Pursuant to section 2423.30 of the Authority's Rules and
       Regulations, notify the Regional Director of Region VI, Federal
       Labor Relations Authority, P.O. Box 2640, Dallas, Texas, in
       writing, within 30 days from the date of this Order, as to what
       steps have been taken to comply herewith.
 
                                       FRANCIS E. DOWD
                                       Administrative Law Judge
 
    Dated:  November 29, 1984
    Washington, DC
 
 
 
                                 APPENDIX
 
                          NOTICE TO ALL EMPLOYEES
 
  PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
 RELATIONS
 AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
 OF TITLE
 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS
 STATUTE WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT refuse to promote Hector Guadarrama or any other employee
 because of their protected union activities.
 
    WE WILL NOT consider the protected union activities of employees in
 making determinations whether employees shall be promoted.
 
    WE WILL NOT in any like or related manner, interfere with, restrain,
 or coerce Hector Guadarrama or any other employee in the exercise of
 rights assured by the Federal Service Labor-Management Relations
 Statute.
 
    WE WILL retroactively promote Hector Guadarrama to such position of
 Engineering Equipment Operator, GS-571-- 10, reimburse him for the loss
 of pay he suffered by reason of the failure to promote him on June 2,
 1983, due to his protected union activities;  and restore any right or
 privilege he may have lost by such action.
                                       (Agency or Activity)
 
    Dated:  By:  (Signature)
 
    This Notice must remain posted for 60 consecutive days from the date
 of posting and must not be altered, defaced or covered by any other
 material.
 
    If employees have any questions concerning this Notice or compliance
 with any of its provisions, they may communicate directly with the
 Regional Director of the Federal Labor Relations Authority, Region VI,
 whose address is:  P.O. Box 2640, Dallas, Texas 75221 and whose
 telephone number is:  (214) 767-4996.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ In adopting the Judge's conclusion that the Respondent violated
 section 7116(a)(1) of the Statute based on supervisory statements about
 the selection, the Authority relies on statements the selecting official
 made to a supervisor which were overheard by an employee, as well as a
 supervisor's remarks to the employee, in finding a violation of section
 7116(a)(1) of the Statute.  Although the Judge noted that the employee
 who was involved in these situations was in the bargaining unit, the
 Respondent asserted in its exceptions that the employee was temporary
 and thus was excluded from the unit.  There is no dispute that the
 employee in question was an employee within the meaning of section
 7103(a)(2) of the Statute, and the employee's bargaining unit status is
 irrelevant to finding a violation of section 7116(a)(1) of the Statute.
 
 
    /2/ Compare United States Department of Agriculture, Plant Protection
 and Quarantine, Animal and Plant Health Inspection Service, 17 FLRA No.
 40 (1985) (wherein the Authority did not order backpay due to the
 failure to establish, in accordance with the requirements of the Back
 Pay Act, 5 U.S.C. 5596, that but for the Respondent's unlawful conduct
 the affected employee(s) would not have suffered a loss or reduction in
 pay, allowances, or differentials).
 
 
    /3/ In directing that the Respondent take certain affirmative action
 with respect to employee Hector Guadarrama, the Authority finds it
 unnecessary to address what action, if any, might be necessary with
 respect to the originally selected employee.
 
 
    /4/ To the extent that paragraph 11 of the complaint alleges a
 violation of section 7116(a)(1) and (2) based upon the conduct set forth
 in paragraph 7(a) of the complaint, I recommend dismissal as such
 conduct occurred more than six months prior to the filing of the charge.
  See 5 U.S.C. 7118(a)(4).  I also recommend dismissal as to Lt. Col.
 Harvey Manekofsky as the evidence does not establish any involvement by
 him during the six months prior to the filing of the charge herein.
 
 
    /5/ The certificate for the WG-11 position was not placed in
 evidence.  For the reasons more fully set forth in footnote 6, I believe
 the term "fully qualified" is more accurate than "best qualified" in
 this context.
 
 
    /6/ The certificate for the WG-10 position (Jt. Exh. No. 1) uses the
 term "fully qualified" and I believe it is not unreasonable to assume
 the same form was used for the WG-11 position.  Accordingly, I conclude
 that use of the term "best qualified" is not correct.  (See Tr. 14,
 lines 16-18 and compare with Tr. 15, lines 20-22.)
 
 
    /7/ Since neither Childs nor Manekofsky testified, the record is
 silent as to Respondent's reasons for seeking candidates from outside
 the government.
 
 
    /8/ Guadarrama estimated that expanding the area of consideration to
 nongovernmental employees occurred "not too often", perhaps 3 or 4 times
 per year.  In his own case, he has been on about 11 other certificates,
 none of which were ever expanded in this way.  He is also aware of the
 normal practice because of his Union position and his familiarity with
 the practice of the EEO Committee.
 
 
    /9/ On direct examination, Ford testified that when he first arrived
 at this duty station he was told quite emphatically that he could use a
 "questionnaire," but he didn't like the one provided him, which was
 taken from a textbook test, so he compiled his own.  "So it wouldn't
 have told me very much if I had given that test.  I rewrote the
 questionnaire asking questions of a much broader, general nature . . .
 ." I credit Guadarrama's testimony that Ford characterized the list of
 questions as a "test." Ford himself referred to it as a test.  (See Tr.
 103, lines 24-25 and Tr. 104, lines 9-10.)
 
 
    /10/ Respondent's suggestion that Ford did not "require" Guadarrama
 to operate the backhoe is emphatically rejected.  When a job applicant
 is twice informed that a demonstration of proficiency is a prerequisite,
 the "suggestion" that Guadarrama might want to operate the backhoe is
 more than a mere suggestion.  Had Guadarrama opted not to operate the
 backhoe, Ford easily could have inferred that Guadarrama feared he would
 fail the test.
 
 
    /11/ Ford explained why he insisted upon a demonstration of
 proficiency by saying that "as a supervisor in this business, I can
 teach somebody to operate equipment.  What I learned by seeing them on a
 piece of equipment of any kind is a combination of hand, foot, and eye
 coordination that one must have to be able to learn.  Some people have
 it;  some people don't." For purposes of the demonstration, Ford stated
 that the loader, grader and backhoe were acceptable.  Ford also
 testified that each piece of equipment had its own peculiarities and
 characteristics;  therefore, he expected to train everyone on each piece
 of equipment even though they already had experience elsewhere on the
 same equipment.
 
 
    /12/ Based upon my observation of Ford when he responded to this
 question, I must admit to having some doubts about his sincerity.  His
 response seemed contrived.  In fact, his entire testimony seemed
 tailored to fit into a carefully planned after-the-fact defense, rather
 than an honest straightforward account of really what happened.  I am
 also compelled to point out that notwithstanding the importance placed
 by Ford in observing one's hand, foot and eye coordination (supra, fn.
 11), Ford did not require (or give an opportunity to) the other
 candidates to demonstrate their proficiency on a piece of equipment.
 Whether this undisputed fact had any influence on Ford's response to
 Counsel's question is a matter about which one can only speculate.
 
 
    /13/ Respondent argues that Cary's testimony is riddled with prior
 inconsistent statements, but did not introduce into evidence his
 pre-trial affidavit.  To the extent there even appear to be some
 inconsistencies on minor matters, they were explained by Cary to my
 satisfaction.  Thus, in both his affidavit (referred to by Counsel in
 cross-examination) and in his testimony he stated that he couldn't hear
 Childs' response to Ford (Tr. 70, lines 10-14, Tr. 76, lines 22-25).
 Nor do I agree that Cary's ability to observe was hampered in any way.
 On the contrary, he was clear as to what he saw, what he heard, and the
 fact that he really only focussed his attention on what related to
 Guadarrama.
 
 
    /14/ Cary's affidavit was the result of a telephone interview,
 presumably because Del Rio is so far from FLRA's Dallas office.  The
 fact that Cary's affidavit was not taken under oath has not resulted in
 any prejudice to Respondent who had an opportunity to examine Cary about
 his affidavit and to cross-examine him concerning his testimony on the
 stand.  My decision herein is not based upon any affidavit;  it is based
 upon Cary's testimony.  The questions asked of MSgt. Ford and the fact
 that Steward and Tustin were available to testify indicates that Counsel
 for Respondent was prepared to litigate the issues centering on Cary's
 testimony.
 
 
    /15/ Cary credibly testified (Tr. 83, lines 9-12) that he "really
 didn't know the month-- seriously do not know the month.  I know that it
 was before Roy (Vasquez) came to work (June 7) and it was right about
 the time when they were finding out that Hector did not get the job."
 Earlier Cary stated (Tr. 71, lines 12-13) "I thought it was in the
 beginning of June." And further, Cary fixed the time as a good week or
 two weeks before Vasquez reported to work.  I conclude, from Cary's
 testimony, that the conversation he overheard occurred on approximately
 June 1 but it is not clear whether it was before or after Ford actually
 made his decision.  In other words, it's not clear whether he was
 explaining a decision already made, or one which was about to be made.
 Although it's a close question, I'm inclined to believe it's more likely
 that Ford was explaining why he was not going to select Guadarrama.
 
 
    /16/ Respondent argues that it is incredible that Cary only recalls a
 portion of the conversation.  The answer, I believe, is that he only
 remembered what he regarded as important;  namely, the part dealing with
 Hector Guadarrama.  I have considered, and I reject, Respondent's
 contention that Cary's testimony was inherently improbable, evasive and
 nonresponsive.
 
 
    /17/ Indeed, Ford was specifically asked whether Childs told him
 anything about the promotion action.  Ford replied:  "Yes.  He told me
 that-- when we were talking about it-- he said something about I
 couldn't put people on the equipment because there had been a complaint
 or a grievance or something on Mr. Guadarrama's part." Ford didn't agree
 with this conclusion and, after talking to Flores in personnel, found a
 line in the manual stating that it was permissible to offer people an
 opportunity to demonstrate their proficiency on the equipment.
 
 
    /18/ Apart from the possible bias of the witness, I place no
 significance on this testimony.  Lack of experience on one piece of
 equipment is not critical, particularly where it wasn't listed on the
 SF-171, and may not have been known to Ford.  Of course, if Ford had
 required Vasquez to submit to a proficiency demonstration on the
 backhoe, it is a matter for speculation as to whether his performance
 would have been satisfactory or not.  What is significant is that the
 backhoe was available (Tr. 126) but Ford did not insist on a
 demonstration.
 
 
    /19/ See also:  NLRB v. Transportation Management Corp. --- U.S. ---,
 103 S.Ct. 2469, 76 L.Ed. 2d 667, 113 LRRM 2857 (1983);  Wright Line, 251
 NLRB 1083, 105 LRRM 1169 (1980);  American Federation of Government
 Employees, Local 1920, AFL-CIO, 16 FLRA No. 70 (Nov. 15, 1984).
 
 
    /20/ See e.g. Department of the Treasury, United States Customs
 Service, Region IV, Miami, Florida, 8 FLRA No. 109, 8 FLRA 561 (1982);
 United States Forces Korea/Eighth United States Army, 11 FLRA No. 79, 11
 FLRA 434 (1983);  United States Immigration and Naturalization Service,
 San Diego, California, 13 FLRA No. 102, 13 FLRA 591 (1984);  and United
 States Air Force, Air Force Logistics Command, Wright-Patterson Air
 Force Base, Ohio, 14 FLRA No. 58, 14 FLRA 311 (1984).  Cf. Veterans
 Administration Medical Center, Buffalo, New York, 13 FLRA No. 46, 13
 FLRA 283.
 
 
    /21/ In response to Cary's inquiry, SSgt. Childs linked Guadarrama's
 nonselection to his activities as a Union representative;  i.e. that
 Guadarrama's selection for promotion "would be a shame, it would be a
 waste;  because he is never around." Such a statement to bargaining-unit
 employee Cary-- although intended only to explain what happened to
 Guadarrama-- necessarily has the effect of discouraging Cary and other
 employees from exercising his (their) rights under the Statute.  Thus,
 such statement is interference, restraint and coercion within the
 meaning of section 7116(a)(1).  General Services Administration,
 National Capital Region, 4 FLRA No. 69, 4 FLRA 502.  Office of Program
 Operations, Field Operations, Social Security Administration, San
 Francisco Region, 9 FLRA No. 11, 9 FLRA 73 (1981).  Since the remedy
 would be the same, I find it unnecessary to decide whether Ford's
 statements to Childs (overheard by Cary) also constituted a violation of
 section 7116(a)(1).
 
 
    /22/ In referring to Guadarrama, Ford testified:  "It did not concern
 me how well he could do with a backhoe;  because I didn't expect a new
 person to be able-- in the same sense it is difficult for me to get into
 somebody else's car." In referring to the other applicants, he said the
 same would be true.  "It didn't make any difference to me what piece of
 equipment they chose, as long as it had levers, pedals, and wheels.
 That is really all that I was looking for-- the ability to use judgment
 and coordination . . . ." (Tr. 124-125).
 
 
    /23/ Department of the Treasury, United States Customs Service,
 Region IV, Miami, Florida, 8 FLRA No. 109, 8 FLRA 561 (1982).  See also:
  Veterans Administration Center, Leavenworth, Kansas, 1 FLRA No. 111, 1
 FLRA 978 (1979) (written counseling and transfer);  Veterans
 Administration Medical Center, Bath, New York, 12 FLRA No. 107, 12 FLRA
 560 (1983) (changing a tour of duty, et. al);  United States Forces
 Korea/Eighth United States Army, 11 FLRA No. 79, 11 FLRA 434 (1983)
 (refused to endorse employee's application for an extension of his tour
 of duty in Korea);  Department of Transportation, Federal Aviation
 Administratio